For a general overview of prenuptial agreements, please see our previous articles, What are Prenuptial Agreements and Why Do Couples Get Them and FAQs about Prenups.
Imagine a same-sex couple from Georgia who was together for fifteen years before marriage became legal in our state. They had children together, bought a house together, and both took turns working and staying home to care for the children. They got married when it became legal in Georgia. What happens if they then divorce in two years?
In the eyes of the law, their marriage was only two years long. Neither party is likely to be awarded alimony. Most of the assets, even if they were acquired together, may be treated as separate because they were acquired before the marriage.
“I can’t help but think like a divorce lawyer, and I worry about these couples,” says Melody Richardson, Managing Member at Richardson Bloom & Lines Family Law. “They may be shocked about how court treats everything they accumulated together for the entire relationship if the marriage ends in divorce.”
Before rushing to the courthouse, same-sex couples should strongly consider drafting a prenuptial agreement (“prenup”) that protects their relationship and both parties in it. Some issues couples should consider before getting married include:
Length of Relationship
A couple may want a prenup that states, for example, that, for the purposes of an alimony award, they will use a date that was before the date they were legally married. This language allows decisions about alimony to be based on the full length of the relationship. The couple may also want to describe the contributions each party has made to the relationship. Alimony awards are strongly tied to the length of the marriage, among other considerations.
How Assets Are Titled
If one person’s name is on the house, bank account, or other asset, a prenup can be used to label these assets as joint property despite how they are titled. This makes those assets subject to equitable division and can protect the party whose name is not on the asset in case of divorce.
How Debts Are Titled
Debts may also be titled in one person’s name and not the other. Couples may want to keep this debt separate (as in the case of student debt) or may want to make sure the parties share it equally (as in the case of a mortgage).
Couples who have spent so much time building a relationship before getting married should make sure their hard work and achievement is recognized.