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Unique Prenuptial Agreement Considerations for Same-Sex Couples

Pre- and/or post-nuptial agreements are often a necessary discussion topic for couples thinking of getting married—especially those that may be entering their second or subsequent marriage; who have accumulated substantial assets and/or established previous families that they will need to provide for. And now that same-sex couples have the right to marry, they, too, may need to take these agreements into consideration; but are all of the considerations the exact same?

Florida Law

Florida courts use a variety of factors in dividing marital assets in the absence of a prenuptial or other form of agreement, including contributions made to the marriage by each person, their economic circumstances, the duration of the marriage, effects on educational opportunities or careers, and variety of other factors.

Room for Injustice

Since same-sex couples have only recently been allowed to marry, the “length of marriage” factor may be tricky for courts to take into account, especially for same-sex couples who cohabitated for many years prior to being able to marry. Without any agreement related to assets, the court only specifically looking at length of marriage over other factors could thus result in unfair consequences.

This might be the case–for example–if the couple has children and decided that one of them would leave their career in order to care for the children (while not legally being able to marry for many years as they raised the children). The court ignoring this contribution simply because the couple could not legally be married for many years would be tantamount to completely ignoring one person’s entire contribution (and sacrifice)—over many years—to the marriage.

The length of the marriage can also be crucial in receiving alimony (aka maintenance), creating more room for a potential miscarriage of justice. By entering into a prenuptial agreement, a couple can still leave room to establish alimony even if their marriage does not last long enough for Florida law to grant permanent alimony.

In addition, prenuptial agreements can also apply to division of debt, which many bring to new marriages after years of cohabitating as well.

What’s more, many, many same-sex couples seeking out marriage likely have been couples for some time, meaning that they are likely older, have assets, and established careers—all considerations that point to the need for a prenuptial agreement for any couple. These agreements make sense because courts are just beginning to grapple with the right for same-sex couples to marry in the first place; by putting everything into writing, it can also ensure that the couple’s wishes are followed by the courts, regardless of where each individual in the relationship ends up.

Florida Family Law/LGBT Family Law Rights

Sandra Bonfiglio, P.A. is proud to serve LGBT communities in Florida and assist with any and all family law related issues, including divorce, child custody, adoptions, pre- and post-nuptial agreements, and other areas of family law. Contact us today to see how we can assist you in ensuring that you are protected.

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