By Jim McCullaugh
The state of Virginia just banned that state’s ban on same sex marriage in yet another major legal victory for gay marriage. The court also said that the state must respect same-sex marriages that were carried out legally in other states. If this trend continues right up to the Supreme Court, gay partners will finally be on a footing equal to their straight counterparts. That means that same-sex couples need pre-nups too.
Comedians joke that same-sex couples should have to experience the same ‘agony’ as heterosexual couples such as divorce, shared custody disputes, spousal support and child support. Indeed, as the law evolves in all 50 states, same-sex couples will all be treated the same way in family court.
But the gloomy reality these days is that the national divorce rate is 50% while the divorce rate in some states like California is about 60%. Being gay is no guarantee that relationship will last.
Instead of hostilities in family court, more experts are advising that same sex couples have a pre-nup before tying the knot.
Yes, some folks characterize pre-nups as ‘romance killers’ and they can be. But if a married couple doesn’t have one, each can be exposed to a financial tsunami and perhaps other heartache. The best defense is a good offense. Hence, same-sex couples need pre-nups too.
Most states permit folks to enter into a pre-nuptial agreement. That is, couples can essentially make a contract about all their property prior to getting married. That way if there is a divorce, the separation roadmap is in place without court and off the radar legal fees. Usually, the only thing couples cannot contract for with a pre-nup is an agreement on child custody/visitation and child support. Courts customarily have the ultimate jurisdiction over minors in custody disputes. But if same-sex couples do adopt a child or have one by artificial insemination, at least they may only have to go to court over this one issue or else have it mediated by a professional. That is still a lot more palatable than an all-out divorce war.
Most states are also evolving in the direction of California in that they are ‘no fault’ community property states. That means a couples’ assets are typically divided in half in spite of situation. Couples who wish to have an unequal division of property should enter into a pre-nup to make sure than happens.
A pre-nup is also important for same-sex couples that are older and want a “late in life marriage.” Older folks typically have more assets than younger people and they also have more financial commitments. Often times they have established separate financial which can be sizable. Thus, there is a lot more at stakes.
Linked to the pre-nup concept is estate planning for same sex couples. There are such also considerations as retirement accounts and pensions. When same sex couples do get married, should they accrue assets in both their names and own property together? Further, what about heirs and what property gets left to heirs and relatives, if any?
Bottom line: It makes sense to sit down with a prospective spouse and carefully go over finances and expectations as well as exit strategies. As a result same-sex couples need pre-nups too.
Questions? Jim McCullaugh is an attorney specializing in estate planning. Call (818) 380-3081 or e-mail: firstname.lastname@example.org