In June 2015, the Supreme Court of the United States ruled that same sex marriage was legal in all 50 states. This means that all Georgia marriage laws, including ones applicable to prenuptial agreements, apply to the same way to same sex couples as they do to heterosexual ones. But, there are some unique issues pertaining to some same sex marriages that need to be addressed. Family law attorneys strongly urge same-sex couples to draft a prenuptial agreement considering, at a minimum, the following issues.
- How long they have lived together as though married. Many same sex couples have lived together for many years. One party may have stayed home with the children while the other one worked outside the home. One party may have worked while the other pursued education. Will there be alimony in the event of a divorce? If so, the court will only consider the contributions of each party to the marriage from the date of the marriage. In a prenuptial agreement, the couple can make a statement about the contributions each have made to the relationship and agree upon a date earlier than the date of the marriage that can be used for making alimony decisions.
- Determine which assets and debts are joint and which are separate. The couple may have assets, such as a home, and bank accounts that are only in one of their names. Under Georgia law, assets brought into the marriage are not divided during the divorce proceedings. Only property acquired during the course of the marriage is considered marital property. A prenuptial agreement can designate these as joint assets. Debts can also be dealt with in the prenup.
When one party asks the other to sign a prenup, there is usually tension. The one not making the request objects to it. When reasonable answers are given to objections, negotiating a prenup can actually improve a relationship.
Having a prenup means we don’t trust each other. A discussion of the terms of a prenup occurs in a trusting relationship, when each party feels free to discuss their own concerns. Each party is trusted to provide full disclosure of their assets and debts. Skills learned in negotiating this sensitive subject can be an indication on how problems can be solved during the marriage
We don’t need a prenup because we are never going to get divorced. As nice as that thought is, no one can predict the future. Everyone hopes for the best, but happily ever after doesn’t work out for everyone. Plus, if you don’t get divorced, you never need to talk about the prenup again. Meanwhile it acts as an insurance policy. It’s there if you need it, but you hope you never do.
Having a prenup will make me worry all the time that a divorce is imminent. Actually, having a prenup sets aside worries about what will happen in case of divorce. Decisions concerning asset division, spousal support, debt allocation and others are all determined so that you can rest easy and set aside sleepless nights, knowing how your financial situation will be affected in the event you do divorce.
If we do divorce sometime in the distant future, the prenup we enter in today may be unfair. As years pass, you can renegotiate the terms, only it will then be a “postnup” not a prenup. You can also add a clause that says the prenup will expire upon a date certain. For example, if the marriage lasts a certain number of years, the prenup will no longer be valid.
There are a number of reasons same sex couples need prenuptial agreements in order to resolve issues before they arise. The prenup can define how assets and liabilities will be divided in case of a divorce. It can establish whether or not there will be spousal support and, if so, how much that will be.
A prenup may determine ahead of time if there will be a lump sum paid to one party in the event of a divorce. Some prenups arrange for a certain amount of money to be paid to the other for every year the marriage lasts. The prenup can even determine who will get possession of the family pet. One area where enforcement of a prenup is still a gray area of law is when there are children involved.
Prenups, Child Custody, Visitation and Support
Courts generally do not automatically follow a prenup in regards caring for and providing for children. Custody and visitation issues are decided according to what the court determines is in the best interest of the children at the time the decision needs to be made. The issue of child support is also one for the court to decide based on guidelines that apply, as in custody and visitation, at the time the decision needs to be made.
Georgia Courts require a divorcing couple to work together to come up with their own parenting plan. A prenup can articulate resources the couple will use to help them do this if they have disagreements. For example, the prenup may have a provision requiring the couple to go to mediation to help resolve disagreements that may arise when they are working on formulating their parenting plan.