Same-sex marriage: Could you benefit from a postnuptial agreement?

 Posted on December 01, 2019 in Divorce

Same-sex marriage has been legal federally since 2015. If you and your partner are thinking about tying the knot, it can be useful to understand how marriage – and the possibility of divorce – can uniquely affect same-sex couples.

You and your partner have been together for years – and you may feel confident that your relationship will last for many more. But you can never predict the future, and sometimes the unexpected happens and couples go their separate ways.

A prenuptial agreement (also called a “prenup”) or a postnuptial agreement can be a valuable tool to protect the members of any marriage. But for same-sex couples, there are some additional reasons to define your relationship in writing.

Define what you share

If you and your partner were together for a long time before getting married, you may have acquired a lot of assets together over the years. You may have bought a house together. Maybe you helped your spouse start a business.

If you get divorced, you want to make sure that the assets you acquired while together count toward your marital assets – and are divided between you. A postnuptial agreement will help identify your shared assets. It can also help protect you if your spouse unexpectedly passes away – or vice versa.

Replace your cohabitation agreement

You and your partner may have established a cohabitation agreement prior to the Supreme Court ruling that legalized same-sex marriage. Since this document may not remain legally binding once you are married (either ceremonially or through common law marriage rules), a postnuptial agreement can replace this.

Bringing up difficult discussions

Taking the time to make an agreement with your partner can give you a valuable opportunity to talk through important issues in your relationship that are difficult to bring up. For instance, you may be worried about your partner's spending habits and want to come to an agreement about using your shared finances. Or maybe you’re worried about inheriting their debt. Talking openly about these common marital stressors in a safe environment can strengthen your relationship with your partner.

Prenuptial and postnuptial agreements often a bad rap as being divorce-preparation tools. However, it's important to understand that you can define your wishes and desires for the marriage. You decide what elements you want to include. You come up with strategies and stipulations to help keep your marriage on track. Ultimately, such agreements give newlyweds and long-married couples an opportunity to discuss difficult matters and set their marriages up for success.