We have to face facts. Right now, the future of marriage equality is uncertain. Sure, marriage equality currently exists across the nation, but due to the Trump Administration as well as the retirement of Supreme Court Justices, progress made in many areas is in jeopardy. Is marriage equality one of the achievements that could now be rolled back? Will LGBTQ+ rights be preserved or overturned? None of us can say for sure. Quite frankly, lots of things have happened in the last couple of years that I can’t believe, so I wouldn’t be surprised at this point.
It’s important to understand that context when considering whether to create a premarital or post-nuptial agreement. Premarital agreements are contracts that couples enter into when contemplating marriage. The agreement lays out how a couple intends to deal with property and spousal support if the marriage fails. (Some also dictate how couples will behave during the marriage, but I think those are weird – seriously, who the hell legally contracts about doing the dishes?) Post-nuptial agreements are similar, but they are entered into after the parties marry. There are some more obscure rules about post-nuptial agreements, but they aren’t essential to know for our conversation.
The underlying reasons to have a premarital or post-nuptial agreement apply across all marriages. You may desire to protect your wealth, affirm the rules for spousal support if you divorce, or define certain obligations in the marriage.
For LGBTQ+ marriages that could be in jeopardy under the draconian policies of this administration, spouses can not only contract to protect wealth, but build in the same rights and responsibilities they currently have with marital equality. Your premarital agreement can create a marital estate, establish rules about property earned during the marriage, and outline rules for spousal support rights and estate rights.
All of that can all be drafted in a premarital agreement to ensure that should the unthinkable happen to marriage equality at the U.S. Supreme Court, some of the rights and obligations you have lost are still protected in a legally binding contract.
Here’s one example. Your premarital or post-nuptial agreement can legally create a marital estate and determine how it would be divided in the event of a separation or divorce. The current definition of “marital property” in North Carolina is real property, such as land and buildings, or personal property, which means any property that can be moved. Marital property must be acquired during the marriage and before the date of separation. It also must be acquired with marital efforts and be property that the couple owns together.
An LQBTQ+ couple who wishes to have that definition of marital property, regardless of what happens to marital equality, should have it written in a premarital or post-nuptial agreement.
When you enter into the premarital or post-nuptial agreement, I highly recommend creating healthcare powers of attorney and wills at the same time. Those documents will ensure your spouse can make medical decisions for you or inherit your estate.
Essentially, for LGBTQ+ clients, I am advising them to presume all rights are in jeopardy and create contracts for the same rights that should be inalienable and immovable. I can’t believe I am having to give advice like this, but this is the day and age we unfortunately live in.
Family law attorney Libby James with Horack Talley in Charlotte works with LGBTQ+ couples on a variety of family law matters. She is certified as a family law specialist by the North Carolina State Bar Board of Legal Specialization. Reach her at ljames@horacktalley.com.