Same-sex marriage is back in the headlines this month, and it has brought back up questions over marriage and divorce equality. One such question revolves around how property division is different for same-sex divorcees than their opposite-sex counterparts.
Why is it different?
In a word, time. Since national gay marriage is a relatively recent legal development, same-sex couples may have been together for years, maybe even decades prior to marriage. Indeed, their pre-marriage relationship may be much longer than their married life. This, of course, is different from the vast majority of opposite-sex marriages, which are almost universally longer than the pre-marriage courtship.
Why does time matter?
For a couple that lived together for years prior to marriage, they likely purchased a lot of items together that, for whatever reason, are only in the name of one person. For example, if one partner has better credit than the other, both spouses’ cars may be in that person’s name. In fact, even the family home may only have one spouse on the title.
This can matter in the property division process. In that process, all property is categorized as marital and non-marital property. Only marital property is divided though, and all non-marital property is given back to the pre-marriage owner. As our readers can likely infer, this can be a huge issue.
How do we fix this?
As with most legal issues, it can be solved through a contract. Specifically, if you are not married yet, a prenuptial agreement and if you are already married, a postnuptial agreement.
This document can outline who owns what or how property should be divided if a divorce does occur. It can be an insurance policy to make sure that one spouse does not get a windfall in a divorce, and that the other spouse is not left destitute. A pre- or postnuptial agreement also ensures that some random family law judge does not decide the Carlsbad, California, couple’s fate.