Same-Sex Marriage: Financial & Legal Issues to Address

The U.S. Supreme Court recently legalized marriage equality in the case Obergefell v. Hodges so all 50 states can now perform and recognize same-sex marriages.  But what does this mean in terms of family law?

For now, most of the chatter seems to be about the right to marry.  Many same-sex couples have already turned to the “fun” things which are related to that right such as wedding ceremonies, receptions, and the like – and that’s understandable.  However  it’s equally important to realize that the Court’s ruling legalizing same-sex marriage can also spark numerous financial and legal issues which same-sex couples should address up front.

Now That You Have the Right; Get It Right

Now that same-sex couples have the right to marry, it’s important to get everything else right – such as issues concerning prenuptial agreements, mortgages and divorce.

1. Prenuptial Agreements.  Issues concerning prenuptial agreements are an important topic for anyone who marries, and should be taken seriously – regardless of how tempting it may be to run to the courthouse to tie the knot as soon as possible.  Prenuptial agreements allow you to, among other things, clarify rights and avoid litigation should a divorce ensue.

2. Mortgages.  Now that property rights legally pass onto the spouse of someone in a same-sex relationship, more and more gay couples will likely take out mortgages to purchase property.  In fact, according to a survey of lesbian, gay, bisexual and transgender (LGBT) consumers by the National Association of Gay and Lesbian Real Estate Professionals, 89% of surveyed LGBT homeowners firmly believe that home ownership is a good investment.  The majority of LGBT non-homeowners seem to feel the same way.  According to the survey:

  • 83% consider qualifying for a mortgage a “strong” or “medium” motivator to purchase a new home;
  • 82% are concerned about rising rents;
  • 59% plan to have children in the future.

Other motivators for home ownership and mortgages amongst same-sex marriage couples might include new tax brackets and the ability to afford more, the availability of better mortgage refinancing rates and more options when it comes to other lenders such as the Department of Veterans Affairs (VA).  In the past, gay couples faced land title challenges as it was not clear that their partner would inherit title.  The new law eliminates that challenge altogether.

3. Divorce.  While it might seem a bit premature to talk about divorce with the U.S. Supreme Court’s ruling being so new, it’s a topic which must be addressed up front.  The question is – will divorce be any different for same-sex couples than it is for heterosexual couples?  Although some same-sex divorces have already occurred, that number is still small.

While some maintain that a divorce is a divorce and will not likely vary by relationship type, this is largely uncharted territory when it comes to same-sex marriages and separate and distinct issues are likely to arise.

 

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