Prenuptial Agreements for LGBT Couples

A prenuptial agreement offers the greatest benefits for LGBT couples that were in a long-term relationship before same-sex marriage was legalized and they decided to marry. This is because in Arizona if you divorce without a prenuptial agreement, all marital property is divided equitably. Marital property only includes property that was acquired during the marriage and the increase of any property acquired before the marriage. This means that any assets or debts obtained before marriage are not divided in the event of divorce. Additionally, spousal maintenance (also known as “alimony” or “spousal support”) is, in part, based on the length of the legal marriage.

It is irrelevant under Arizona law, how long the partners were in a committed relationship; it only matters how long they were legally married. Even if a property was acquired after you and your partner had been living together for 30 years, it would be classified as separate property under Arizona law if it was received prior to marriage. By signing a prenuptial agreement, an LGBT couple can value the time they spent together before their legal marriage. The couple can divide assets and debts that they accumulated during their entire committed relationship as they see fit.

Furthermore, prenuptial agreements provide additional benefits to both LGBT and heterosexual couples. These benefits include:

• Providing certainty in the event of divorce. Instead of leaving decisions up to the court and Arizona state law, you and your spouse can control the process. Making this agreement at a time when you are getting along and in harmony can reduce the stress and fighting that may occur during divorce.
• Protecting children from previous marriages. If you die without a prenuptial agreement, the surviving spouse from a second marriage may have the right to claim a significant portion of the estate, leaving your children from a previous marriage with little. A prenuptial agreement can work to protect the inheritance rights of your children.

• Protecting business interests. Valuing and dividing business interests during divorce can be extremely contentious and complicated. Classifying business interests as separate property in a prenuptial agreement will ensure that the business will not be divided in the event of divorce.

• Protecting financial interests. Using a prenuptial agreement to protect your financial interests is particularly beneficial if you or your partner are coming into the marriage with substantial wealth or an established career. On the flip side, prenuptial agreements are also helpful if one partner is entering the marriage with significant debt.
• Starting your relationship with communication and transparency. Even if you stay happily married and do not get divorced, entering into a prenuptial agreement brings value. Through the process, you and your future spouse will examine what your future, especially your financial future, will look like together. A prenuptial agreement can be a helpful first step in an ongoing dialogue throughout your marriage.