In California, same-sex couples can benefit from all of the legal rights and protections that the state offers to married couples. As a result, many same-sex couples in California believe that the creation of a prenuptial agreement involves generally the same issues and considerations as it would for any other couple.
But there are many critical reasons that same-sex couples – even those without children – should take the time to consult with a family law attorney before the marriage. In a national context, married same-sex couples still face a number of legal complexities that other married couples do not face. Carefully-drafted premarital agreements can help guard against those complexities.
Many U.S. states still do not recognize same-sex marriage. And just one of those states, Missouri, recognizes same-sex marriages legally performed in other states* (*as of the time that this article was written). The other states that do not recognize same-sex marriage also refuse to recognize many of the legal rights of married same-sex couples, including the right to divorce.
Same-sex couples married in California may obtain a divorce from the California courts if they reside in a state that does not recognize same-sex marriage. But the enforcement of a prenuptial agreement for same-sex couples residing in those states can be problematic, especially if the enforceability of the agreement rests on the recognition of a marriage or a divorce.
Fortunately, this issue can be put to rest at the outset through an alternate method of drafting the premarital agreement. The American Bar Association (ABA) recommends that the agreement be drafted as a contract that is enforceable regardless of whether the marriage is recognized or not. The result would be a contract recognized in all fifty states. This alternative way of drafting a prenuptial agreement should be discussed with a family law attorney experienced in addressing legal issues facing same-sex couples.
Same-sex couples who have children or who are planning a family should also consult an attorney prior to the marriage in order to understand how the family can be protected through provisions in the prenuptial agreement in case the family moves or travels extensively out-of-state.
Same-sex couples may also want to take the time to create additional legal protections before the marriage, beyond the prenuptial agreement. The creation of a health care proxy may be especially important for same-sex couples, as the ABA also notes. A married same-sex couple traveling to or residing in a state that does not recognize the marriage may face difficulties in a medical emergency – family visitation rights and decision-making rights may not be afforded to the spouse by hospital staff. A pre-existing health care proxy may help afford many of these rights.
Gerald A. Maggio is a trained Orange County divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.