“For Same-Sex Couples, Prenuptial Agreements May Be Especially Important”
Not all civil contracts are created equal! I know Prenuptial Agreements are not the sexiest of topics, but for LGBT Minnesotans, they just got more important. A Prenuptial agreement for same-sex couples may be one of the best tools to protect yourselves in a divorce when it comes to the division of assets. Why?
- Neither a Co-Habitation Agreement nor a Domestic Partnership Agreement is made in anticipation of marriage. They are used in lieu of marriage. If you are dissolving your marriage and you don’t agree on the division of assets, you may not be able to use your prior Co-Habitation Agreement or Domestic Partnership Agreement to resolve those issues. The intent of these of agreements is to allow two people to make a civil contract that details their mutual agreement on how to handle the relationship, and/or its termination. They can include property division, support of children, and various other expectations and issues. But, because these agreements do not “become” Prenuptial Agreements when you get married, you need a new agreement if you are now planning on getting married or if you’ve gotten married recently.
- If you’ve never executed any sort of civil contract, your relationship is long-standing (more than a year or two), and you are now considering marriage, you are strongly urged to execute a Prenuptial Agreement. For those who have enjoyed a significant number of years together before getting married, a Prenuptial is especially important because it is a contract in anticipation of marriage. Although most people use Prenuptial Agreements to define individual property, you can also use them to define what is co-mingled. This is important because, in a divorce situation, your property is divided as equitably as possible by first dividing it into “marital property” (co-owned) and “non-marital property” (individually owned). Although it isn’t always that clean of a distinction, your marriage date is used to help define those assets. If you’ve been together 18 years, for example, and then you get married in 2013 and divorced in 2015, your “marital property” will be defined with perhaps unsatisfactory results.
This is one of the areas that remains a bit unsettled for same-sex couples in Minnesota because there aren’t a lot of previous Court decisions on which to rely. Because same-sex couples have only recently become able to marry, no one knows exactly how their particular marital property issues will shake out when all is said and done. You and your soon to be spouse are taking an unnecessary risk without executing a Prenuptial Agreement to define how you both agree to think about your co-mingled property in anticipation of marriage.
No one wants to think about the dissolution of a marriage – especially not your own. But, if you don’t spend a little time thinking about it now, you may end up spending a whole lot of time wishing you had.
This blog is written by Bridget-Michaele Reischl, Attorney DECORO LAW OFFICE, PLLC www.decorolaw.com