Prenuptial Agreements for Same-Sex Partners in California

On June 26, 2015, the U.S. Supreme Court’s historic decision in the Obergefell v. Hodges case made same-sex marriage legal in the United States. One result of this decision is that as more individuals get married, there will naturally be an increase in the number of divorces. This potential increase in divorce in California may lead to complicated questions that will emerge regarding adoption, alimony and the division of marital property.

While Obergefell may have provided a legal solution for many same-sex couples, rushing into marriage may not be a wise decision. In this state, it would be wiser to first meet with an experienced California family law attorney to determine if a prenuptial agreement (or a prenup) might be right for you and your partner.

What is a Prenuptial Agreement?

A prenuptial agreement provides legal and financial protection to both spouses regarding spousal support and the division of marital property in the event of divorce. Prenuptial agreements in California are governed by California’s Uniform Premarital Agreement Act. A premarital agreement is basically an agreement made by an engaged couple that will take effect when they get married.  It also defines what constitutes property, and the definition is very broad, encompassing pretty much anything of value. A prenuptial agreement in California must be in writing.

A California family law attorney can help answer questions about what can and cannot be included in a prenuptial agreement. For example, generally any financial issue can be dealt with in a premarital agreement. Yet, issues relating to children, including child support and custody are not permitted. 

For a prenuptial agreement to be enforceable there must be financial disclosure, the premarital agreement must not be unconscionable, there must not be any coercion and the parties must understand what they are signing. Additionally, California requires that there be at least seven days between when a party is first presented with an agreement and when the agreement is signed.

California has special provisions regarding spousal support in prenuptial agreements. It is advisable for same-sex couples to discuss this specific topic with an attorney experienced in handling alimony in same-sex divorces.

In Summary

Same-sex partners without prenuptial agreements may have little or no legal protection in the future if they’re unexpectedly served with divorce papers. It is important to consider that in same-sex marriages, the family courts, even in California, currently have few legal precedents to guide them.

They say that an oral prenuptial agreement is worth the paper it is written on. If you decide to get a prenuptial agreement, make sure it is drafted by an experienced divorce attorney who can provide legal guidance. Whether you are about to enter into marriage or considering divorce, you should consult with a local family law attorney to discuss how a prenuptial agreement can protect your spousal rights.