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Getting married? Same-sex couples need prenups, too

Since the U.S. Supreme Court opened up the possibility of marriage for same-sex couples, they have made their unions legal through marriage here in New York and elsewhere. As time passes, however, same-sex couples have begun to realize that they take the same risk as all married couples do -- the possibility of divorce.

If you and your partner decide to marry, you may want to consider a prenuptial agreement to protect your interests in the event that your marriage doesn't last. It may not be romantic, but if you come to your marriage with assets, debts or children, it's something to carefully consider.

What protections does a prenup give you?

Most people enter into prenuptial agreements for the following reasons:

  • To identify separate property
  • To identify separate debts
  • As part of an estate plan
  • To establish rules regarding finances during the marriage
  • To reduce potential conflicts during a divorce
  • To document certain agreements between you
  • To avoid expensive and time-consuming court battles

Many people experience discomfort when discussing finances, and money problems remain a leading cause of divorce. Entering into a prenup requires you and your partner to discuss these matters prior to the wedding. Knowing where each of you stands financially and understanding how each of you views money could avoid problems in this area in the future. Therefore, you have an advantage over couples who fail to discuss money before they marry.

The other side of the coin

Even with everything you may gain by having a prenuptial agreement, it does have some disadvantages. You may hesitate to enter into one for the following reasons:

  • Can't cover child support and custody
  • The potential for significant changes in the future
  • State law may already cover your issues
  • The court could invalidate all or part of the agreement

In addition, prenuptial agreements cannot include personal preferences. For instance, you can't divide the household chores, specify whose relatives to spend holidays with and the like. This agreement addresses financial issues only. 

Do you need legal help with a prenup?

In order to determine whether a prenuptial agreement works for you and your soon-to-be spouse, it may help to sit down with a family law attorney to discuss the matter. Any number of reasons could give rise to the need for a prenup. Knowing what those reasons are may elude you. An attorney could sit down with you, evaluate your current finances, assets and liabilities, and help you determine whether one is right for you.

If you determine that you need a prenuptial agreement, you want to ensure that you protect your rights, that you don't give up any important rights and that the agreement will stand up to court scrutiny if you divorce.

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