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The U.S. Supreme Court announced on October 6, 2014 that it was not going to consider appeals from lawmakers in five states, including Virginia, who wished to uphold same-sex marriage bans. The result: same-sex couples now have the right to get married in Virginia.
As with any other couples, same-sex couples should always consider a premarital agreement, more commonly referred to as a prenuptial agreement or “prenup,” prior to entering into marriage. Especially as Virginia divorce law changes to accommodate same-sex couples, the use of a prenup can ensure that parties to a same-sex marriage are protected despite any shifts or ambiguities in the law.
Despite the widely held belief that prenups are only for the rich, a premarital agreement is something that every couple should consider. A prenup protects the premarital assets of one or both parties and allows a couple to contemplate the division of assets prior to the marriage. More importantly, it allows a couple to consider these issues prior to a divorce—when neither party is angry or emotional.
Although being forced to think about and discuss what would happen in a potential divorce is not the most romantic task, it is certainly something that can add security and trust to a marriage as well.
Virginia Code Section 20-150 defines the parameters of prenups in Virginia. It allows for couples to determine such things as (a) the disposition of property, (b) each party’s right to buy, sell, or lease property, (c) spousal support, (d) making a will or trust in order to carry out the terms of the prenup, (e) how to deal with life insurance policies in the event of divorce, and (f) any other personal rights so long as they are not illegal or contrary to public policy.
A prenup can be especially useful for a same-sex couple by allowing them to create and maintain rights even in states in which their union is not yet legally recognized. Without a prenup or other similar contract, parties to same-sex marriages will not be able to ask for spousal support or property distribution if they wind up living in states that have not yet recognized same-sex marriage. Likewise, members of same-sex couples may not be able to automatically exercise the power of attorney or make health care decisions for their partners in those states, absent binding legal documents.
In Virginia, a prenup can include language that requires a divorce to be filed in a state that recognizes same-sex marriage, in an effort to protect each party’s right to distribution of property and debts upon divorce. In addition, a same-sex couple who chooses to have a child can at least attempt to protect the non-biological parent’s rights to custody and visitation, by evidencing that parent’s relationship with the child in a prenuptial agreement.
A same-sex couple may also be able to use a prenup to protect the child’s right to receive child support from either partner. The New York state appellate court found that a same-sex partner may be liable for child support, and although this area of law is certainly still developing, there are doctrines recognized by Virginia (such as the theory of in loco parentis) that support a non-biological parent, or person acting as a parent, to be responsible for the support of a child. The language of a prenup could be a crucial piece of evidence in demonstrating the intent of a both parents in a same-sex couple to be financially responsible for child support.
The bottom line really is that every couple—young, old, rich, middle class, same-sex or heterosexual—should consider a prenuptial agreement. Hopefully it is never needed and your union lasts forever. However, the statistics related to divorce make it very clear that many unions do not last forever. Divorce can be one of the most unpleasant and emotionally draining experiences of a person’s life. It can also be very expensive. Many times it may also be unfair. A prenup can serve to protect the rights of both parties and lay the foundation for fairness in the dissolution of a marriage. That alone is priceless.
[Please also note that it is never too late for a couple to enter into an agreement along the lines of a prenup. Couples who have already married can enter into a “postmarital agreement” that acts the same as a prenup, the only difference being that it is entered into after the marriage.]
If you are considering a premarital agreement, it is important that you seek legal advice from an experienced family law attorney. The family lawyers at Livesay & Myers, P.C. are experienced in the drafting, negotiation and review of prenuptial agreements. If you need assistance with a prenup in Northern Virginia, contact us to schedule a consultation today.
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