Prenuptial Agreements For Same-Sex Couples

Premarital agreements, or antenuptial contracts as they are officially called in Minnesota, are one of the legal rights from which gay and lesbian couples wishing to marry in Minnesota may benefit when same-sex marriage becomes legal in the state on August 1, 2013. However, because same-sex marriage is not recognized in most states, the typical subjects of prenuptial agreements - alimony/spousal maintenance, asset division (including the marital home), retirement accounts - that are often straightforward for heterosexual couples may create complicated questions requiring careful thought and planning for similarly situated gay couples who wish to marry in Minnesota.

Portability/access to courts

If a same-sex couple married in Minnesota relocates to a state that doesn't recognize same-sex marriage, it's possible that the courts in that state will refuse to grant a divorce, enforce the terms of a prenuptial agreement or both. It may be possible to draft a premarital agreement in such a way so that it is enforceable and binding as a matter of contract law, even if the marriage on which it is premised is not. Similarly, a premarital agreement can require parties to obtain jurisdiction in an appropriate state before divorce.

Taxation

Under the federal tax code, court-ordered alimony payments are treated as income to the recipient spouse or ex-spouse and may be deducted from the payor's income tax. Prior to the U.S. Supreme Court's recent decision striking down certain provisions of DOMA, this tax treatment was only available to divorced or separated heterosexual couples.

While it is widely assumed that this tax benefit is now available to legally married same-sex couples, it is not yet clear whose definition of marriage the IRS is going to follow: the state in which the marriage was solemnized or the state in which the couple resides at the time of divorce. Therefore, it may be prudent to set up alternative way to make support payments that take into account tax consequences in the event a couple relocates outside of Minnesota.

Financial history/property division

Many gay and lesbian couples who choose to marry have been together for many years. It is important to discuss any past agreements or practices related to their financial relationship and the extent to which marriage may affect those understandings or cause unintended consequences.

Same-sex couples, especially those who have a relationship history, also need to consider how marriage will change property rights and ownership. A prenup can be used to ensure property ownership and character is not affected by the marriage or to specify treatment of property upon dissolution of the marriage.

Speak to a family law attorney

To find out how a lawyer can work with you to address family law legal matters unique to same-sex couples, contact a family law attorney today to schedule a consultation.