Special Considerations For Same Sex Couples Considering Prenuptial Or Post-Nuptial Agreements

Prenuptial and post-nuptial agreements can become a particularly interesting way of addressing perceived unfairness or imbalances created by the laws surrounding same sex marriages.  As same sex couples rejoice at the willingness of a legal system to recognize their union, it is important that we pause to note the special circumstances surrounding the short time that such marriages have been legally available, and the special problems that may arise in the event of divorce.

It would not be at all uncommon for a now married same sex couple to have considered themselves as a family unit for many years or decades.  That same sex couple may have acquired real property, personal property, bank accounts, and other assets, and indeed may have adopted or given birth to children during their relationship.  One partner may have paid for the other to attend advanced schooling, earn a degree or license, or may have created a business with the indirect support of the other partner.  In the minds of the couple, and in their hearts, they have long been a unit.  But in the eyes of the law they became so but a short time ago.

Were a couple to become divorced today that became married twenty-four months ago, but who lived together for twenty years, they would have participated, legally, in a “short-term marriage”.  The opportunity for the person earning less income to receive maintenance from the higher bread-winner would be limited to a period of months.  There would be no recognition of property acquired prior to the legal union of the couple in one party’s name, no recognition of sacrifices made in indirect contributions in the growth of one partner’s business, or assistance provided in one partner obtaining an advanced degree or license.

A piece of real property acquired by one as a matter of convenience, or bank account opened in the name of the other simply because that person was closest to the bank that day, could result in a distribution of property that would be vastly different than the traditional married couple next door experiencing similar circumstances.

The Domestic Relations Law, as set forth above, welcomes persons to fashion their own “marriage deal” so long as it complies with statute.  A couple whose physical union has been of long duration, but whose legal marriage has been short could decide that Domestic Relations Law Section 236 would not be “fair” in their eyes.  At a time when the marriage relationship seemed strong and healthy, the couple could project how they would handle future discord.  One partner who, prior to a “legal marriage”, became a doctor, professor, lawyer or accountant could prepare an agreement that would recognize, in the event of divorce, the other partner’s contribution.  Partners could state that they would ignore the law of title, and instead embrace the idea that even if only one partner holds title to property after a certain date, that the value of that property would be split in an ultimate divorce.

While parties could not provide in a prenuptial agreement how they would handle custody or child support for unborn children, they certainly could address issues regarding existing children, and  imagine a schedule of maintenance (alimony) that would extend beyond what the court would provide, in recognition of a long standing relationship and sacrifices made by one partner during their relationship.

A prenuptial agreement is a tool, and that tool can meet many purposes.  While traditionally used to limit or at least clearly define within the context of “traditional marriage” how assets should be distributed and disparities in income addressed, this statute could also be used to recognize the longstanding existence of a union only recently recognized in law.




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