BY LISA SCHMIDT
FERNDALE – Now that the Supreme Court opened marriage to LGBT citizens across the country, record numbers of LGBT couples are tying the knot. But years of being denied marriage equality will continue to affect these couples, particularly when they divorce. That's why it is so important for LGBT couples to sign a prenup before they say, "I do."
A prenuptial agreement is a contract entered into before the start of a marriage. It can set out what will happen during the marriage and provide a guide for what happens in the case of death or divorce. Prenups can be used to protect spouses, businesses and children, and can be written to benefit the less privileged spouse.
Take Jack and Steve, for example. Jack is a photographer whose business makes some money, but he generally relies on Steve, a bank teller, to pay most of the bills. Jack and Steve have been together for 18 years. For the last 12 years they have lived in a home that Steve purchased, but that Jack maintains. The couple got married after the Obergefell v. Hodges Supreme Court decision in June 2015, but now things are falling apart.
Marriage Equality Without A Prenup
Without a prenuptial agreement, any divorcing couple – LGBT or straight – follows the same rules at court:
– Assets and debts accumulated during the marriage are divided equitably (usually close to 50/50).
– Assets and debts either spouse owned before the marriage belong to that spouse.
– Spousal support (or alimony) is calculated based on factors like the length of the marriage and ability of each partner to earn money.
All of these factors start counting on the day of the marriage. Anything that happened before that date is non-marital – even if the couple was living happily together for years before going through the formal ceremony. That can cause problems for LGBT couples.
If Jack and Steve were to follow standard divorce law, Steve would likely keep the home, along with all of his income, assets and retirement earnings prior to the 2015 marriage. At best, Jack might be entitled to some compensation for his work as a handyman on the home.
Jack shouldn't count on any spousal support either. Short term marriages (up to 10 years) often don't result in any alimony at all. Even though Jack relied on Steve for nearly two decades, he could be on his own after the divorce.
A Prenuptial Agreement Can Help
By signing a prenuptial agreement before getting married, Jack and Steve can tell the courts they value their time living together too. They can agree to a minimum spousal support number and can lay out what assets should be treated as separate or marital property. A family lawyer can help Jack protect his interest in his business and intellectual property in his artwork, or help Steve identify the value of brokerage accounts and other non-liquid assets.
Couples can't tell the court to treat them as married before the wedding day. But by agreeing to how their assets and debts will be divided ahead of time, LGBT couples can command respect for their long-term relationships.
Timing Is Everything
To make this work, LGBT couples need to talk to a family law attorney before the wedding day. Prenuptial agreements only work if they are signed before the marriage. After the vows are exchanged, an estate planning attorney may be able to help guide what happens when one party dies, but they probably won't be able to change what happens in case of divorce.
Obergefell v. Hodges was a giant leap forward in the fight for marriage equality. But LGBT couples still need to be careful. Don't let divorce laws undercut your long-term relationship. Talk to a family lawyer before your wedding day to provide for you and your spouse in case anything happens.
