Love Won...What's Next? Prenup!

Now that SCOTUS has declared same sex marriage constitutional, gay and lesbian couples throughout the country have the choice to marry, a right which previously may not have been available to them.  This option to marry opens another door, that to prenuptial agreements.  In some situations, same sex couples have even more reason to sign a prenuptial agreement before tying the knot.  Prenups can have a negative connotation, so let’s look at them from a positive, even marriage enhancing viewpoint, including ‘marriage booster’ clauses.

First, because of the only recent legality, many same sex partners are marrying at a later age, and may have amassed a large estate or substantial debt on their own.  Where community property laws will be implicated, such a couple may want to protect their assets or isolate their liabilities from their partner in case of a divorce.

On the other hand, some of these couples are getting married after long-term relationships and want to protect the assets and property that they’ve acquired together prior to getting married.  For example, a couple gets married after a 15 year relationship, during which time they acquired substantial shared assets, and divorces 2 years later. The assets acquired prior to marriage are not community property, so upon a divorce, only those assets acquired within those 2 years are subject to equitable distribution. Such a couple may choose to get a prenuptial agreement, which will allow them to decide how to divide those assets acquired prior to marriage in the case of a divorce.

Furthermore, a prenuptial agreement may be a good choice for other same sex couples as a means for resolving disputes.  A couple can agree that they will first try mediation or arbitration to resolve any family legal issues or a potential divorce.  This agreement could prevent a couple from going head-on into an ugly courtroom battle before at least attempting to negotiate or reconcile through less adversarial means.

Lastly, a prenuptial agreement can help set you up for success with the inclusion of marriage booster clauses.  Clauses may be traditional, where a couple agrees to attend one marriage counseling seminar a year, or get away for two weekends a year by themselves. Marriage booster clauses may also include progressive approaches, with marriage education courses that teach communication and other relationship skills. These are a good choice for couples who waited a long time to marry, who are new to the institution, and will help to give them the best possible chance at a successful marriage.

From the Hiller Law blog.  See more here.