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Preventing Same-Sex Divorce after the Obergefell Decision

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While the United States Supreme Court passed its landmark civil rights decision in favor of same-sex marriage in Obergefell v. Hodges last year, there remain many important emotional and financial issues that same-sex couples still should be aware of in today's environment.

Of course, no couple enters into marriage with a plan to eventually divorce. While the Supreme Court decision stated unequivocally that a marriage is ultimately a marriage without requiring a separate same-sex designation, the same also holds true with the divorce process. Yet, there are some emotional issues that are unique to the community that same-sex couples certainly need to consider when planning to wed.

While the Obergefell ruling was a cause for great celebration, it is essential for couples not to get caught up in excessive exuberance when considering taking this very important step in their lives. As Richard Roane, Founding Chair of the American Academy of Matrimonial Lawyers (AAML) LGBT Committee is fond of saying to audiences, "The right to marry is not an obligation to marry." In other words, same-sex couples need to carefully plan without being tempted to rush through the process and potentially take shortcuts because they are caught up in the history and excitement of the moment.

Before the legalization of same-sex marriage, many partners would often have detailed cohabitation agreements drawn up to protect assets if they were entering into a live-in relationship. Interestingly, a recent AAML survey found that 70% of the respondents had noted a decrease in cohabitation agreements being drawn up between same-sex partners since marriage has been legalized.

Among the financial issues that same sex couples need to consider is the concept of same-sex "tacking issues." Tacking is the adding together of non-marital years, together with the years of marriage, in order to take into account the total number of years of the entire relationship. There is growing support for this concept to be appropriately addressed on a state-by-state basis, due to the fact that so many same-sex couples may have been in long-term relationships for many years, even decades, before the separation occurred even though the marriage was just recently allowed.

Consequently, if a state is able to officially recognize through tacking legislation that a same sex couple had been together for a long period of time in the post-Obergefell legal world, such legislation could have a critical impact on the process of dividing assets and calculating spousal support during a possible divorce for same-sex couples.

As a result of the legalization of the right to marry, many partners should now consider whether tacking issues and other support and property matters may require the consideration of a prenuptial agreement in place of a cohabitation agreement. While these considerations are never easy for any couple, this definitely represents an area that should be cautiously explored without any pressure to rush or take a shortcut to getting married because the law now permits it. Further, there are many older same-sex couples who have found cohabitation to be more financially advantageous than entering into marriage.

While the Supreme Court decision might act as an inspiration for some of these partners to make the union legally recognized, they should pause and consider whether marriage might make them vulnerable to financial penalties and consider whether a premarital agreement is advisable. Thoughtfulness and diligence should be guiding principles in these situations.

The right to marry comes with the emotional and financial responsibilities that all couples must recognize in an effort to ensure that their unions are strong and lasting ones. While the Supreme Court ruling has given same-sex couples the cherished freedom to marry, it does not create an obligation to marry, but rather it provides the opportunity for a carefully considered individual decision, one that significantly promotes each party's financial future and a lasting marriage.