At one point or another after getting engaged, many couples will discuss the idea of a prenuptial agreement, whether they believe they are good candidates or not. Most young couples entering their first marriage with no children and few assets will often decide that the cost of a prenuptial agreement does not outweigh the benefits, both financially and emotionally, as they contemplate divorce before they are even married. On the other hand, older couples or couples entering into a second marriage may opt for a prenuptial agreement, especially if they have children and/or substantial assets.
Now that same-sex marriage is legal in the United States, same-sex couples must also decide if a prenuptial agreement is right for their situation. In addition to the above mentioned factors when considering a prenuptial agreement, there are other considerations which are unique to same-sex couples.
During the process of divorce, the length of a marriage and contribution during a marriage are two important factors that courts often consider when determining spousal support and dividing property and assets. The problem arising with same-sex marriage is that many couples are only being “credited” with years of marriage, even though they have been together for decades. Many states, such as Michigan, have held that the length of a marriage is determined by the date of legal marriage regardless of how long a couple has been cohabitating and in a committed relationship before getting married. See, e.g., Korth v. Korth, 256 Mich. App. 286, 662 N.W.2d 111 (2003); Reeves v. Reeves, 226 Mich. App. 490, 575 N.W.2d 1 (1997)
Many argue that using the legal marriage date to determine the length of same-sex relationship can generate unfair results in a divorce by skewing the reality of the relationship. They state that the constitutional ban on same-sex marriage kept them from marrying years ago when they wanted. Depending on the specific situation and the jurisdiction’s determination of the length of marriage, some same-sex spouses may not be entitled to their fair share of property accumulated over the course of the entire relationship.
There are other factors besides length of marriage which courts will consider when deciding on spousal support and property division. Some courts may decide that periods of cohabitation before legal marriage will count towards the length of a relationship. It is important to consider that trial courts have very broad discretion, and any judge could decide the same case differently without any clear discretion.
Due to the above reasons, it is important for same-sex couples planning to legally marry after years of living together to discuss putting a prenuptial agreement into place. A prenuptial agreement will help to protect from the court’s broad discretion and protect each spouse in the event of a divorce to ensure that they receive what they are fairly entitled to. The same-sex prenuptial agreement may control the determination of the length of marriage or address the disposition of assets acquired before the partners were legally allowed to wed.
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Partner at John F. Schutz, P.L.
Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.
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