Paul McGuire | Legally LGBT
Marriage equality is a wonderful thing. I am very excited about getting married. Marriage equality also means that divorce is treated the same whether a same-sex or opposite-sex couple is involved. Many couples go to marriage counseling but few take the time to learn all the details of what it means to be married according to the law.
Of course, nobody goes into a marriage expecting it to breakdown. The goal is to commit to someone whom we can truly be with for the rest of our life. We also wear our seatbelts every time we drive even though most people don’t think they will ever get into an accident. We’re all perfect drivers right?
We’ve all seen the movies where a couple’s marriage is held up and sometimes breaks down because one insists on a prenuptial agreement. Most often this is because of some significant assets they own. One person worth millions of dollars usually insists that the other agree to forsake any interest in millions of dollars in order to marry.
I am not suggesting that everyone needs to negotiate a prenup before getting married. I do think that it would be wise to do your research before tying the knot. As Attorney Mark Baer wrote on Huffington Post, everyone has a prenuptial agreement whether they negotiate for one or not.
The law recognizes that there needs to be some uniformity among couples that split. Over time, most states have developed default rules that apply in the event of a divorce. The simplest example of this is division of property.
California and other Community Property states treat all money earned during marriage by either spouse as a result of their work efforts as community property. This means that in the event of a divorce, each spouse has an equal right to half of that money, or property purchased with it.
For many people this is no problem. Other couples may decide to agree on an alternative.
Another thing to consider is how much harder it is to divorce once children are involved. One may end up paying child support to the other. You will also have to decide how to divide time with the children. Children can bring a lot of joy to your life. In theory, the law places the interests of the children first in a divorce. Most same-sex couples can’t have children without planning. Part of that planning should involve learning about how the law treats children in a divorce.
You might also be wondering if you should get married if you are already registered domestic partners. Each couple’s specific circumstances may differ but for now in order to get federal benefits, you must be married. You might have some personal reasons why you want to be married as well. It also helps if you plan to travel to another state where they may not recognize your domestic partnership.
Learning how the law works can help you make informed decisions throughout your marriage. Getting married is one of the most important steps you will take. With proper guidance through the process, you can better prepare for all possible outcomes.
—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com