Now that the U.S. Supreme Court has legalized same-sex marriage throughout the country, a lot of gay couples who have lived together for many years are getting married. And while every engaged couple should at least give some thought to a prenuptial agreement, it’s even more important for same-sex couples in this situation.
Here’s why: When a couple gets divorced, and a judge divides their property, the judge will usually take into account the length of the marriage. A judge is more likely to divvy up assets that were acquired during the marriage than assets that a spouse owned before the wedding.
So if a couple were married for 20 years, the vast majority of their assets were probably acquired during the marriage, and the divorce agreement will reflect this fact.
But what if a gay couple were together for 20 years, but because same-sex marriage was illegal for so long, they were only married for three years? A judge might treat this as a “short-term” marriage, and allow a spouse who acquired a lot of property during the first 17 years to keep that all for himself or herself.
Of course, it’s also possible that a judge might not do that – a judge might treat the entire 20-year partnership as though it were a long-term marriage. But there’s no guarantee. That’s why gay couples in this situation who want their entire relationship to be treated as the equivalent of a marriage should consider signing a prenup to this effect.