Jul 262013

Family Law Update: Gay Couples Unsure Whether to Say “I do”

Twelve states currently allow same sex marriages. Thirty-five states explicitly ban same sex marriage and three states do not allow same sex marriage, but do not ban it. One of these is California. In June, the United States Supreme Court brought same sex marriage back to California and many gay couples saw the opportunity to rush and get married.

Yet, many experts advised California gay couples to re-examine their marriage commitment and not to rush into tying the knot. The reason for the warning because what happens if these couples divorce. In California, a community property state, couples that divorce must split their property in half. Under a community property statute everything acquired during the marriage, with the exception of gifts or inheritances, is owned 50/50. In non-community property states courts follow the doctrine of equitable distribution and award a “marital interest” in any property that was acquired during the marriage through the efforts of both spouses. This acknowledges the contributions of both spouses, whether the contribution is financial or through a spouse’s work in the home, regardless of whose name is on the legal title.

One solution may be a prenuptial agreement and it may avoid splitting property in half upon divorce. A pre-nuptial agreement is entered into prior to the marriage.  Some of the issues it addresses include: Listing separate property and income; financial assets and income; the voluntariness of the agreement; division of expenses and costs for the household; estate planning provisions; effect of a deceased spouse; remarriage; division upon divorce; and distribution to children upon death or divorce. The agreement can be revised at a later date and may be appropriate when significant financial assets are involved in the marriage. It all depends on the couple and their wishes and expectations of the marriage.  So with the added privilege of marriage for gay couples, come the dire consequences of possibly losing property in a divorce.  Perhaps one outweighs the other.

So do you want to learn more? If so, then sign up for the AIPS Family law online paralegal class!  To find out more information on the Family law online paralegal class visit the curriculum page of the AIPS website (www.aips.com) at  http://www.aips.com/advanced-courses/course-descriptions/


Janet Russeth, J.D. AIPS Instructor

Janet Russeth, J.D.
AIPS Instructor


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