Jane-Ashley McMillan, Attorney at Law

Addressing unique LGBT issues with a prenup

If you and your partner have been together for years, even decades, you may have joined many in the LGBT community and rejoiced at the groundbreaking Supreme Court decision Obergefell vs. Hodges. This landmark case recognized that same-sex couples have the same rights as opposite-sex couples when it comes to marriage laws. Perhaps you and your partner began planning your wedding immediately, or maybe you have been debating for years whether to marry or keep things as they are.

With a wedding in your future, you may be more intensely watching other couples marry, and it may be discouraging to see some heading for divorce. Even more upsetting may be the complex and tangled mess a same-sex divorce can be, especially for couples who were together long before winning the right to marry. This is why more same-sex couples are considering the value of a prenuptial agreement before taking their vows.

Can a prenup help you?

No matter how devoted and committed you and your partner are to each other, no marriage is without risks. You may have purchased a home, established a business together or even adopted children, and each of these and other factors will be a fresh and painful dispute if the relationship breaks apart. Dealing with these matters now can be a generous way of looking out for each other while you are still focused on the other's best interests. Some of the issues your prenuptial agreement can address include the following:

  • Your strategies for spending, saving, borrowing and investing during the marriage
  • Which of your assets you want to remain separate from property division in case of divorce
  • How you will divide assets you have accumulated jointly, especially those acquired prior to your wedding
  • Whether one of you will pay the other spousal support, especially if one sacrificed a career to raise the children
  • How you will divide any debts accumulated before and during your marriage

Texas divorce courts will typically focus only on those assets you and your partner acquired from the day of your wedding. It will be important to have a plan for other assets you own jointly but that are not legally part of your marital property because you acquired them before your wedding. Additionally, if you and your partner share the parenting of children, you would be wise to seek legal advice about protecting those rights.

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