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Now that wedding bells have resumed for same-sex couples in the state of California following the final demise of Proposition 8 thanks to the U.S. Supreme Court, many gay and lesbian couples are planning for the wedding that they could once only dream about. But whether you are gay or straight, if you are contemplating marriage you may want to consider a prenuptial agreement.

Why a Prenuptial Agreement Might Be a Good Idea

As difficult as the subject may be to broach with your beloved, there are some very sound reasons why you might need a prenuptial agreement. No one wants to think about the possible demise of their relationship before they’ve even made it to the altar, but the fact is that many marriages do not stand the test of time.

According to statistics from the U.S. Census Bureau, more than 40% of first marriages end in divorce. For second and third marriages, the divorce rate is even higher. Granted, same-sex marriages are a relatively new occurrence in the United States, and these statistics are for heterosexual marriages, but it is likely that same-sex marriages will also face their share of unhappy endings.

Prenuptial agreements spell out ahead of time how your property and finances will be split up, should you and your partner divorce. This may be an especially important consideration if one or both of you have accumulated substantial assets before you marry (this is often true in older couples, or for those who have been married before). If you have children from a previous relationship or marriage, it may be also important for you to protect your assets to avoid problems down the line.

Having a frank and honest discussion about your finances with your future spouse can help foster a sense of trust in the relationship. Potential landmines can be avoided in the process of “discovery” and sharing as you approach your marriage with complete transparency.

If you have decided that a prenuptial agreement might be the right choice for you, here are some important things to keep in mind.

What Can Be Included in a Prenuptial Agreement

Prenuptial agreements are somewhat flexible, and can include a variety of wide range of options depending on the needs and wishes of the couple. These can include:

  • Identifying which items are considered separate or community property.
  • Financial responsibilities during the marriage.
  • Responsibility for any premarital debts or obligations.
  • The division of property upon termination of the marriage through divorce.
  • Ownership of the primary residence following divorce.
  • Alimony obligations, if any.
  • Which state’s laws the prenuptial agreement will be based on if different from the state in which the couple marries.
  • How disputes are to be resolved (mediation, arbitration, etc.)
  • Expiration date (also known as a “sunset provision”), if any, that specifies when the prenuptial agreement would end if the couple remains married past a certain length of time.
  • Distribution of property upon the death of either spouse (this would also need to be included in any estate planning).

What Can’t Be Included in a Premarital Agreement

Certain things can’t be included in a prenuptial agreement. Some of these include:

  • Child custody issues, such as visitation, support, etc. as the courts want to retain the future right to act in the best interests of the children.
  • Anything unfair, or unconscionable, to one partner.
  • Anything illegal, as with all law.
  • Anything that is may be perceived by the court to encourage divorce.
  • Certain marital duties can’t be specified or required in order to keep the agreement valid. For example, marriage includes duties of mutual respect, fidelity and support. Therefore, an agreement to pay compensation for “domestic services” or “intimacy” isn’t valid, because those are already considered duties of marriage.
  • Clauses that prescribe penalties for certain behaviors (infidelity, drug use, etc.)

California has followed the Uniform Premarital Agreement Act (UPAA) since 1986, which has been updated from time to time. Under the UPAA, the following requirements must be met for a prenuptial agreement to be valid:

  • The agreement must be completed before the marriage takes place (a couple may enter into a “post-nuptial” agreement if they desire, however).
  • The agreement must be executed by both parties (not an agent or attorney) before a notary public.
  • The agreement must be in writing (oral agreements are typically unenforceable).
  • Full and fair disclosure must have taken place by both parties at the time of execution.
  • Both parties must have entered into the agreement voluntarily, and had full

Courts may partially or completely invalidate a prenuptial agreement when contested if they find that the terms of the agreement are unfair to one party over the other.

Premarital Agreements are valid in all 50 states and the District of Columbia. Also, note that pre-nuptial agreements can also be entered into by partners in a domestic partnership in some states, including the State of California. However, not all states recognize same-sex marriages or domestic partnerships, and the courts in various states may or may not recognize a prenuptial agreement for same sex couple. This is why it is critical for you to consult with a qualified California gay or lesbian family law attorney to discuss your legal options—before you say “I do.”