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Some Considerations Regarding Same-Sex Marriage and Prenups

After the landmark U.S. Supreme Court rulings of 2013, a Forbes writer made an interesting comparison between what was about to happen to marriage in the U.S. with what happened after World War II. 

After the war, when young soldiers returned to the states, there was a marriage boom, and it’s possible the numbers of same-sex couples marrying now could be similar. The difference is that whereas returning soldiers and their spouses often had very little to their names in terms of assets, that’s often not true of same-sex couples today, many of whom have had long, established relationships and have accumulated significant assets. 

Navigating this new terrain may seem confusing at first, and it’s important to plan for any possible scenario, including the eventual dissolution of your same-sex marriage. Many couples have opted to draw up prenuptial agreements (also called antenuptial agreements) because the future is unpredictable, and having some sense of what would happen during and after a divorce can provide peace of mind. 

But same-sex couples also have unique considerations that need to be factored into a prenuptial agreement. In fact, some of these may be reason enough to have a prenuptial agreement in the first place. For instance, because the laws surrounding same-sex marriage differ from state to state, it’s useful to consider what might happen in the event of relocation to a state that doesn’t recognize your marriage, and therefore won’t allow you to divorce. Having an agreement in place to account for how you might dissolve your relationship under those circumstances would be useful for any same-sex couple. 

There’s also the issue of civil unions. Couples who entered into a civil union before marrying may find it difficult to enforce a prenuptial agreement, as it would more technically be considered a postnuptial agreement or mid-marriage agreement. This is an area in which the law is complex and still evolving. 

If you have questions about how Minnesota law applies to your upcoming same-sex marriage and are contemplating a prenuptial agreement, contact a Twin Cities marriage and family law attorney at Appelhof, Pfeifer & Hart.

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