Same-sex marriage and prenuptial agreements

All gay, lesbian and same-sex couples who are planning to marry should get a prenuptial agreement.  This is more important for a same-sex couple than for a heterosexual couple.  Let me explain.

Because of the Defense of Marriage Act (DOMA), constitutional bans on same-sex marriage in other states, and a lack of same-sex marriage laws in other states, couples who marry here in Massachusetts and in New England suffer great inequalities once they leave the safety of those select states that allow same-sex marriage.  Once they leave and go to a state that does not have same-sex marriage, they’re no longer married!

So what happens if you were married here in Boston, Massachusetts and you  move to Texas AND you now want to divorce your spouse? You can’t.  You cannot get a divorce because you’re not married.  This is where a prenuptial agreement might help.  If you had a prenuptial agreement and you and your spouse is having a disagreement on how to divide the marital assets, then the prenuptial agreement is simply a contract between two people.  It is a contract whether or not the couple is classified as “married” or not.  In theory, a prenuptial agreement will still hold up in court (although not family court most likely) if a disagreement and dissolution were to occur in a same-sex relationship in a non-friendly state.

This is not guaranteed to work however because many states are still hostile towards the concept of same-sex marriage and therefore, they might seek any excuse to disenfranchise anyone who is gay.  However, having a prenuptial agreement can only help – not hurt.

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