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Advantages of Pre-Nuptial Agreements for Same Sex Couples

Same sex couples face different challenges when deciding whether to get married. In many instances, the prospective spouses have their own careers, their own assets and own earnings. Since they were not permitted to marry in most states until the recently, both were living separate lives and for a much longer period of time than the average heterosexual couples. Therefore, there is a stronger probability that prospective spouses in a same-sex marriage have more to "bring to the table" than a heterosexual couple who is probably just starting out.

Given the probability of a larger amount of assets and earnings by each prospective spouse, couples entering into a same sex marriage may need to consider what assets they wish to protect and which assets they wish to be merged into the marriage. The issue of spousal support and alimony can also be addressed in a pre-nuptial agreement.

Pre-nuptial agreements are very good tools for couples to protect assets that are being brought into the marriage, especially if one prospective spouse has more assets or earnings than the other spouse. Pre-nuptial agreements are used to determine how assets are to be divided and whether or not one spouse is to receive alimony, the amount of alimony or if support and alimony are to be waived.

Many people believe that an asset obtained prior to a marriage remains a separate asset. However, the laws in many states, including Pennsylvania, New Jersey and New York, recognize that any increase in value of an asset brought into the marriage becomes a marital asset. This includes stocks, real estate, retirement plans, pensions, values of businesses, etc. In the event there is a significant increase in any of these assets during the marriage and the marriage then dissolves, the increase in value is a marital asset, unless otherwise addressed in a pre-nuptial agreement. The increase value of the asset can be waived, a percentage of the increased value of the assets can be assigned to each spouse, or the asset itself can be assigned to one spouse.

Likewise, if one spouse makes significantly more money than the other spouse, then the spouse earning less may be entitled to alimony, unless otherwise addressed in a pre-nuptial agreement. The pre-nuptial agreement can set forth the amount of alimony to be paid upon the dissolution of the marriage or both parties can waive alimony.

Pre-nuptial agreements require full disclosure of the total financial picture of both prospective spouses. The pre-nuptial agreement can be challenged and found to be not valid if there is not such full disclosure.

No couple getting married wants to think about how to distribute assets in case of a divorce. However, the current statistic for failed marriages, whether heterosexual or same-sex marriages is fifty percent (50%) It is much better to have a plan in place in the event that the marriage does fail and never have to use the agreement than not to have a pre-nuptial agreement and then become embroiled in costly litigation and emotional damage from fighting over assets and alimony.

If you are considering entering into a marriage, you should consult with an attorney and plan for what could happen, not what will happen.

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A couple can come to their own agreement about property settlement, which the court will generally accept. The Pennsylvania court will decide if either spouse is entitled to alimony, based on age, physical and mental condition, earning potential, duration of the marriage and standard of living. The court decides the duration of alimony, but support ends automatically if the one receiving it remarries or cohabits.
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