Marriage Equality: Gay Couples to Now Consider Possibility of Divorce

 Posted on June 05, 2014 in Divorce

Recently, gay rights advocates have had a lot to cheer about in regards to recent rulings. On May 19th, a federal district court ruled that Oregon’s constitutional amendment banning same-sex marriage violated the Equal Protection Clause of the U.S. Constitution. The following day, another federal district court ruled that Pennsylvania’s statutory ban on same-sex marriage was also unconstitutional. As court and legislative battles wage in other states across the country, it is clear that momentum favors the gay rights movement.

Last year that momentum carried over into Illinois, which no longer defines marriage as a union between a man and a woman. The marriage equality bill that the governor signed into law officially took effect on June 1, 2014. For many Illinoisans, this victory was long overdue. While gay couples already had the option of entering into civil unions, they did not enjoy the same options as straight couples. Gaining the right to marry means that all married couples – gay or straight – now have the same benefits and responsibilities under the law.

Opting for a Prenuptial or Postnuptial Agreement 

Of course, these couples might soon discover that the reality of marriage does not always live up to the ideal. First comes marriage, and then, for almost 50 percent of Americans, comes divorce. Couples who just gained the right to marry might not want to think about that grim statistic, but it is important to be aware of the risks of marriage and options for mitigating those risks. One of those options is agreeing to a prenuptial agreement: a written contract outlining how marital assets will be divided if the marriage ends.

A prenuptial, or premarital (also referred to as antenuptial), agreement must be in writing and voluntarily signed by both parties. There can be no evidence of coercion, fraud, duress or anything that suggests a party signed against his or her will. The agreement takes effect when the couple marries and can only be revoked or amended by another written agreement voluntarily signed by both parties. A typical prenup discusses:

Each party’s rights and responsibilities regarding marital assets (property acquired during marriage);

• Each party’s rights and responsibilities regarding non-marital property (property brought into the marriage or property inherited individually);
• Whether a party’s will should be written so that it reflects the terms of the agreement;
• How marital property should be divided in the event of separation or divorce; and
• Whether one party will receive maintenance payments (alimony) and the terms of those payments.

If you hesitated to enter into a prenuptial agreement, you still have the option of writing a postnuptial agreement to define each party’s financial rights and responsibilities. Like a prenuptial agreement, a postnuptial agreement is a written contract that must be signed by both parties.

Prenuptial and postnuptial agreements are an option for every couple. Deciding how to divide marital property is a practical step and might spare you unnecessary headaches in the future. If this is a step that you are considering, contact one of our experienced divorce attorneys for a consultation. Let us help you protect your financial future. We can assist those in the St. Charles area.