The U.S. Supreme Court decision last year was a huge one in the history of the country. Many same-sex couples immediately got married or started making plans to wed. However, now that it’s been a year since the decision was handed down, some possible unseen consequences are coming to light. One of those is that many same-sex couples would benefit greatly by having a prenup in place before the wedding.
When any couple divorces, the settlement is largely based on how long the couple has been married. Generally, the longer the marriage, the more spousal support and property division become an issue. This is why many in family law are now seeing that the courts may need to make specific provisions to “tack on” the years the couple cohabitated before the marriage when making decisions about the settlement.
For example, before they were legally allowed to marry, many same-sex couples chose to cohabitate instead — sometimes for years. If they are only legally married for a couple of years before filing for divorce, the settlement may be seen as less than fair to one party because it only takes into consideration the years legally married. The premise behind the tacking on concept is that these couples would have married if legally able to and the long-term cohabitation should be treated as a marriage.
However, right now there is no specific legislation in place. Therefore, the best way to protect yourself is to get a prenuptial agreement. You and your partner can set the terms as you see fit so that assets are handled appropriately in the event of a divorce.
Source: Huffington Post, “Preventing Same-Sex Divorce after the Obergefell Decision,” Joslin Davis, June 24, 2016