Pre-Nuptial Agreements for Same-Sex Partners

For many years, Michigan has permitted couples to sign pre-nuptial agreements that will govern if one of them dies or they divorce. There are some requirements if a pre-nup is to be enforced. The parties must have the capacity to contract. They must exchange information about their assets and liabilities (usually in attached exhibits). There can be no duress or fraud. And the agreement must not be unconscionable when a party asks for enforcement. That last requirement casts something of a cloud over all pre-nup’s since no one can tell what the future will bring.

There is yet another sticking point. Parties cannot agree to custody, parenting time, or child support in advance through a pre-nup. They can, however, agree to property, debt, and spousal support issues.

In today’s world, many pre-nup’s have “sunset provisions” in them. For example, the pre-nup can say that it will “expire” in ten (10) years. Also, parties can waive the rights they would have had as a “surviving spouse” if one of the spouses die—and they can waive spousal support or limit it.

The problem for the LGBT community is that courts consider a 10 year marriage to be “long-term” and then award a longer term of spousal support. There are cases that have already been decided where the Court of Appeals has held that a period of cohabitation before the marriage “does not count.” Also, the Social Security laws have a provision in them that if a couple is married 10 years or more, then upon divorce or death, the surviving spouse or divorced spouse can claim Social Security based on the other spouse's “earnings” if they are greater. This substantially prejudices same-sex couples who are only now able to marry but who have cohabited for years.

One way to get around this, so to speak, is to sign an agreement that upon divorce, the court will consider the entire period of cohabitation in dividing property (which is based to some extent on the length of the marriage) and in awarding spousal support (which is based heavily on the length of the marriage).

Pre-nup’s are an important tool for same sex couples who have been together for a long time and now intend to marry. While you cannot control what the Social Security Administration will do, you can attempt to control what the court will do.

Pre-nup’s should be coupled with a good estate plan.