Why married same-sex couples should get a postnuptial agreement

| Aug 13, 2020 | Same-Sex Couples & Divorce

Same-sex couples fought hard for the right to legally marry and have those marriages recognized in court — so they often hate to think about the possibility of divorce.

Frankly, thinking about that while everything is going well between you and your spouse is actually the ideal time to do it. If you approach the situation from a loving perspective, those positive feelings you have now toward each other can set the stage for a peaceful, fairer divorce if it happens.

How can a postnuptial agreement help same-sex couples have a friendlier divorce? Consider these issues:

1. It can help redefine what counts as marital property.

When a couple divorces, they have to split their assets. For same-sex couples who have been in a committed relationship long before they could legally marry, that process can be inherently unfair.

Because of the old legal complications, big-ticket items like vacation homes, cars, boats and art may have only gone into one spouse’s name before the marriage — even if both partners contributed in some way toward the purchase. Retirement funds, stocks and investments that are meant to fund a joint retirement may also be unequally titled.

A postnup can clarify what property is considered jointly owned (in the same way that it can also carve out exceptions and designate an asset as belonging solely to one person).

2. It can resolve issues with spousal support.

If one half of a couple is financially dependent on the other, spousal support (or “alimony”) may be an issue. The duration of a couple’s marriage is one factor that California courts consider, so not having that clearly spelled out in an agreement could put the dependent spouse at a severe disadvantage.

Getting a postnup doesn’t mean that you’re “looking for trouble.” In fact, they are designed to accomplish just the opposite. If you think that a postnup might be in order for your marriage and provide you more security, find out more about the process.

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