Same-Sex Prenuptial Agreements in California

Since 2008 the state of California has been granting same-sex marriage licenses to couples. After a brief period of licensing being put on hold in 2013, they began to be issued once again.

Same-sex couples have the option to enter into a marriage or a domestic partnership, just as heterosexual couples do. They are also entitled to enter into what is known as a prenuptial or premarital agreement.

Prenuptial agreements can help with a number of issues both before and after a marriage:

  • You can agree on each party’s financial rights
  • You can protect yourself from your spouse’s debts
  • You can protect a business you own
  • You can separate property for children who are from a prior marriage

Why Same-Sex Couples Should Consider a Prenuptial Agreement

Statistically same-sex couples are currently divorcing less frequently than heterosexual couples. But that does not mean that these couples should forgo entering into a prenuptial agreement.

One of the primary reasons why all couples should consider a prenuptial agreement is that it will help both parties avoid extensive litigation and endless fighting should they enter into a divorce. All major issues have already been clarified and settled upon prior to the divorce, saving you time, money and emotional stress should you decide to end your marriage.

Discussing the issues which are brought up during the prenuptial agreement also helps prepare both couples for the serious commitment they are about to make. When discussing the agreement, topics such as how they will manage their finances, who is responsible for what debts and what rights to property each party has will be brought up. These discussions can actually deepen a relationship and improve a couple’s communication skills.

If there are children in the home, a prenuptial agreement will help protect them from the fighting and bickering which often comes at the end of a marriage. This will make the transition from having married parents to divorced parents much easier on them.

Finally, these agreements will allow you to protect your estate plan. In the event of your death, everything will already be laid out, such as if a particular family heirloom will be given to one of your biological children and not given to someone else.

Prenuptial Agreements Do Not Cover Child Issues

There are two key issues which a prenuptial agreement cannot settle:

The courts will determine what is in the best interest of the child at the time of divorce and will make a ruling based on that.

Same-Sex Prenuptial Agreements Similar to Heterosexual Prenuptial Agreements

A same-sex prenuptial agreement has a similar structure as one which a heterosexual couple will enter into. One major difference is that same-sex couples are more likely to have spent a significant amount of time together prior to being married due to the fluctuating legality of same-sex marriage in California.

This is why it is even more important for same-sex couples to discuss a prenuptial agreement with an experienced family law attorney. An attorney will use the correct language and structure to ensure that you are able to legally maintain both separate and community debts and assets so that both parties are not left with any unpleasant surprises should they divorce.

Same-sex couples must also recognize that if you were married in California but currently live in a different state, you may need to handle your divorce in the California jurisdiction depending on your state.

Attempt a DIY Prenuptial Agreement with Extreme Caution

Some couples will attempt to create their own prenuptial agreement, but as they may discover years down the road, the judge will find that it is “unfair” or that it is not a legally sound document.

Because same-sex marriages are even more complex than heterosexual marriages and prenuptial agreements, same-sex couples should strongly consider seeking legal guidance from an experienced family law attorney to ensure that their debts and assets are properly handled in a divorce.

Prenuptial Agreements Can Be Changed after Marriage

One common misconception about same-sex prenuptial agreements is that once they are signed, they are set in stone. This could not be further from the truth.

If, for example, you have obtained new property or if your financial situation has changed after your wedding day, you can then modify any terms of the prenuptial agreement as long as you are able to fulfill the following:

  • The two parties involved agree to the change in terms; and
  • The changes are made in writing and are accompanied by each party’s signature

Couples may also want to re-examine their prenuptial agreement if you move to a different state or if you become parents.

Agreeing to a Prenuptial Agreement after a Marriage

It is possible for same-sex couples to enter into what is known as a “postnuptial agreement” after they are married. This agreement is similar to a prenuptial agreement but can be made after you have exchanged “I do’s”.

Contact Lavinsky Law for Help with Your Prenuptial Agreement

Brighter Days Are Ahead, Lavinsky Law helps couples in the Los Angeles area enter into legally sound and equitable prenuptial agreements. If you are preparing to walk down the aisle and want to protect yourself and your partner in the event of a divorce, we are here to help.

To speak with an expert family law attorney at Lavinsky Law, we welcome you to contact us for a free consultation at (310) 274-2717.