If you’re considering signing a prenup with your partner, it’s important to be honest with each other about your financial situation and goals.
In 2013, same-sex marriage rights in New Jersey were recognized. Two years later, the landmark 2015 U.S. Supreme Court ruling in Obergefell v. Hodges gave same-sex couples the right to marry in all 50 states.
While the expansion of rights—and subsequent nuptials—provided lots of opportunities to celebrate, the new laws brought additional legal considerations for same-sex couples. One such consideration? The role of prenuptial agreements in LGBTQ+ marriages.
Prenuptial agreements and LGBTQ+ couples
Family law matters can be complex and emotionally charged for any family, including those in the LGBTQ+ community.
Yet, having big-picture conversations can be well worth it for engaged couples. By discussing serious issues like personal assets or inheritances for children from a previous marriage before exchanging vows, soon-to-be-married couples can head off potential problems.
However, a verbal agreement isn’t enough to ensure that a couple’s desired arrangement will be honored by the courts. Instead, you’ll need a legal contract known as a prenuptial agreement.
A prenuptial agreement for LGBTQ+ couples is no different than one for heterosexual couples. It’s a contract between two people who plan to get married that outlines how assets and debts should be divided in the event of a divorce or death. The ultimate goal of the document is to help protect both spouses’ financial interests (or those of their dependents).
Benefits of prenuptial agreements for LGBTQ+ couples
Prenuptial agreements may be especially beneficial for LGBTQ+ couples for several reasons.
For one, many LGBTQ+ couples marry later in life than heterosexual couples and may have accumulated significant assets and debts before getting married. A prenup can help you protect these assets (and avoid taking on unwanted debts) in the event of a divorce.
Some people entering a same-sex marriage may have children from previous relationships. While prenup agreements on child custody or support aren’t legally enforceable, a prenuptial agreement can still play an important role in ensuring your children are financially protected in the event of a divorce or the death of a parent.
Another reason some same-sex couples consider a prenup is that they are concerned about the possibility of the Supreme Court’s decision on same-sex marriage being overturned in the future. In this context, a prenuptial agreement can give you peace of mind that even if laws change, you’ll have legal protection in the event of a breakup.
Protecting assets and finances
In New Jersey, assets—like real estate, businesses, and bank accounts—that are acquired before marriage are generally considered separate property. These assets are not necessarily subject to equitable distribution in the event of a divorce, although they could be in some situations (like if the value of your business or property grows significantly during your marriage and/or your spouse makes important material contributions to it).
Meanwhile, assets that are acquired during marriage are more readily considered marital property and subject to equitable distribution. (Note, though, that there are exceptions; for example, gifts to a partner or inheritances can be an exception.)
Rather than deciding later or letting the courts decide how to classify your assets in a divorce, a prenuptial agreement empowers you to define for yourselves which assets are separate property and which assets are jointly held.
This can be especially helpful for LGBTQ+ couples who accrued significant assets or debts before getting married. For example, if you inherited a family business, you may want to include a provision in your prenup that states the business is your separate property. This will protect your share of the company in the event of a divorce.
Estate planning for LGBTQ+ couples
In some cases, a prenuptial agreement may be useful to support your estate plan. For example, you may choose to create a trust for your spouse or children as part of your prenup, or to designate your spouse as your beneficiary for your life insurance policy.
Review any existing estate planning documents that predate your marriage with an attorney to make sure they include language that aligns with current laws about inheritance and estate tax. Just as importantly, ensure that it aligns with your current wishes.
Photo by Kristina Litvjak on Unsplash
If you’re just beginning the estate planning process, start with an open conversation about your wishes. Then, work with an experienced attorney to create the proper documents. While some family law attorneys may not have the background to help you with estate planning matters, law firms like Dughi, Hewit & Domalewski combine the capabilities of a full-service law firm with the personalized service of a boutique practice.
How to get started with a prenup
If you’re considering signing a prenup with your partner, it’s important to be honest with each other about your financial situation and goals. This includes disclosing all of your assets and debts, as well as your plans for the future.
Discuss your expectations for the marriage and the prenup before making a final decision. Ask your partner about their financial priorities, as well as how they envision each person’s finances changing throughout the marriage.
Be prepared to compromise. A prenup is a negotiation, and ultimately, its purpose is to benefit you both. Taking on these conversations now can help you move forward with greater confidence in your relationship and your shared future.
Finally, hire an attorney who is experienced in drafting prenups for LGBTQ+ couples. A knowledgeable attorney can help you understand your legal rights and options and can draft a prenup that is tailored to your specific needs.
Contact an attorney with experience advising LGBTQ+ couples
When it’s time to move forward, choose a law firm that you feel comfortable with. Look for a family law attorney who is accustomed to drafting prenups for LGBTQ+ couples and knows what concerns can arise and how to address them.
At Dughi, Hewit & Domalewski, our compassionate family law attorneys are committed to helping you understand all of your rights and options under the law, so you can feel confident that your prenup is tailored to your specific needs.
Schedule your consultation with our team today to get started.
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