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Same-sex couples should consider prenups

Dear Clients and Friends,

As is well known the U.S. Supreme Court has legalized same-sex marriage throughout the country and a lot of gay couples who have lived together for many years have, or are getting married. And while every engaged couple should at least give some thought to a prenuptial agreement – or a post-nuptial agreement for a married couple – as it is even more important for same-sex couples. 

Here’s why: When a couple gets divorced, and a judge divides their property, the judge will usually take into account the length of the marriage. A judge is more likely to divvy up assets that were acquired during the marriage than assets that a spouse owned before the wedding.

So if a couple were married for 20 years, the vast majority of their assets were probably acquired during the marriage, and the divorce agreement will reflect this fact.

But what if a gay couple were together for 20 years, but because same-sex marriage was illegal for so long, they were only married for three years? A judge might treat this as a “short-term” marriage, and allow a spouse who acquired a lot of property during the first 17 years to keep that all for himself or herself.

Of course, it’s also possible that a judge might not do that – a judge

might treat the entire 20-year partnership as though it were a long-term

marriage. But there’s no guarantee.

That’s why gay couples in this situation who want their entire relationship to be treated as the equivalent of a marriage should consider signing a prenup to this effect. 

Call us for a free phone evaluation on the options, merits and estimated fees needed for your family law challenges. 



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