Should Same-Sex Divorce Cover Pre-Marriage Financial Issues?

Imagine that you lived with your partner and shared finances for 30 years before finally getting married. Then imagine that soon after saying “I do” you decided to get a divorce. What happens to your shared finances? Should only assets gained after the marriage count when you spent decades living, for all intents and purposes, as a married couple? What if during most of those 30 years you lived together the law didn’t allow you to marry? Does that change anything?

As more states move to legalize gay marriage…and gay divorce… judges in courtrooms across the U.S. are now grappling with exactly how to address financial issues among long-term couples who formed marriage-like bonds before the option to legally marry was available. Should same-sex couples who married after decades of sharing a home, sharing bank accounts, and even, in many cases, parenting children together, be treated the same as other long-term heterosexual couples who chose not to marry during those years? Or is there a difference?

So far, the answer is far from clear. “Gay and lesbian couples have had to be pioneers,” Susan Sommer, director of constitutional litigation for Lambda Legal, an advocacy group devoted to gay, lesbian, bisexual and transgender legal issues in New Jersey and other states, said in a recent piece. “Until things get familiar…initially there will be a sense of, ‘How do we do this?'”

In New Jersey, same-sex couples are in an unusual situation. Namely, while same-sex marriage remains illegal at the present time, if same-sex couples residing in New Jersey married in a state where same-sex marriage is legal, they may be entitled to get a divorce in New Jersey, their home state. The couple may also choose to have their Civil Union dissolved by the courts, if they had pursued that option.

How can same-sex couples, regardless of marital or Civil Union status, protect their assets in the event their relationship ends? Here are some tactics to consider:

Do you have children? If you and your partner are raising kids, have any non-biological parents gone through the adoption process (second parent adoption) to make sure you are both legally recognized as the child’s parent? Regardless of marital or civil union status, or where you live, legal parents of children have certain rights.

Have you considered a premarital or pre-Civil Union agreement? It’s always a good idea before marriage for both parties to consider how they would like to treat certain assets that they are brining to the marriage or Civil Union. If you and your partner are entering a marriage (if you live in a state where same-sex marriage is legal) or Civil Union after a long-term relationship, a pre-nup or pre-Civil Union agreement can help bring clarity to these issues.

If you are already married or in a Civil Union, have you considered a post-nuptial or post-Civil Union agreement? Couples have another chance to make choices about their finances in a post-nuptial or post-Civil Union agreement, which can cover issues such as decisions about alimony and marital asset division.

What’s best for you? Working with a family law attorney can help you better understand your options, especially during this time of tremendous change. We’ll keep you posted!