Advice: The Gay Pre-Nup Is Real

In this week’s column, Mr. Manners deals with same-sex pre-nups. Yes, with marriage equality comes divorce equality, so be sure to have all the protections the law provides.

BY Steven Petrow

May 29 2012 11:14 AM ET

Q: My partner and I have been together for about five years, and now we’re planning our wedding. I’ve always earned more than he does, and I also have some family money, a retirement fund, and some real estate that I inherited from my grandparents. I’ve always been happy to share everything, but my lawyer is insisting that we have a prenuptial agreement now that we’re making it legal. I don’t know how to even ask my partner about it, much less ask him to sign it. After all this time, it seems kind of … crass? What’s the “right” way to go about this – if there is one?

A: Congratulations on the wedding bells, and welcome to the new world of marriage equality – which, alas, also includes divorce equality. Of course, nobody likes to think about breaking up while they’re writing vows and picking centerpieces, but I can definitely see your lawyer’s point about protecting your assets. But a fair pre-nup should also provide safeguard to your partner, and I hope your lawyer recognizes that.

Let’s face it: LGBT couples have long taken informal,  even “squishy” approaches to how they manage their money, since their relationships were extralegal. Couples who moved in together generally embarked on a step-by-step, negotiated financial journey. In the past,  if and when one of them moved out, they’d split up the CD collection, bicker over how to divvy up the checking account, silverware, and friends, and then go their separate ways. If serious differences arose about how to do the math, they were pretty much on their own. Without a legal marital relationship to define who was entitled to what, exes just had to work it out themselves, and some got badly burned. Some savvy couples have had legal “partner agreements” drafted to codify their financial obligations and specify what would happen in the event of a breakup, but those were the exceptions to the rule.

Marriage changes all that. When you say “I do” – in the eyes of the state – you’re not only getting the benefits of matrimony,  you’re also committing yourself to a state-defined legal relationship, with rules about your financial obligations during the marriage and also about what happens in the event of a divorce. (As with straight couples, these vary state by state.)

This is no time to be squishy, especially when one partner is better off financially than the other. Since your assets include family money and inherited property, it’s especially wise to put an agreement in place that protects both of you. I’d suggest that you find a time, as soon as possible, when the two of you are alone and not distracted, and raise the topic.

In fact, start the conversation well before your wedding day to avoid unnecessary drama and urgency. And don’t pull out a prewritten agreement the first time you bring up the subject. That would only convey to your partner that he’s not a part of the process and that you’ve already worked it all out with your lawyer. Remember: This isn’t something to impose on him, but rather something to be discussed and agreed upon mutually. Once you start to talk about what you would each expect to happen in the event of divorce, you’ll probably both conclude that you need legal advice – if nothing else than to help you understand what would happen in your state if you don’t have a pre-nup. (By the way,  most states require both parties to have separate legal representation in drawing up a pre-nup. Think about it – it wouldn’t really be fair if you were the only one with an attorney. I actually know some couples in which the better-off partner has covered the legal fees of his fiancé.)

But how do you start the conversation? Begin with, “I’ve been thinking about our financial future together, and I think it’s a good idea to talk about the benefits of a legal agreement – for both of us. I expect us to stay together forever, of course, but I also want both of us to be protected in the event we divorce.” (By the way, I’d avoid using the term “pre-nup” since it’s so freighted by straight marriages gone down the drain.)

Give your partner some time to digest this news — it will likely come as something of a surprise — and then do some explaining. Reiterate that this is not just a selfish move to protect your assets, but that pre-nups can also stipulate who pays how much of the rent or mortgage (you may agree to pay more), how vacations are financed (perhaps you’ll be on the line for the lion’s share), or that you promise to pay for your partner’s advanced degree.  As one gay man with a wealthier lover explained to me, “At first I was appalled that he would ask me for this. But the more we talked, the more we both understood our financial fears. Now, if we break up after five years, I get a pretty good payout. I wouldn’t have had that before the agreement.”

In the end, be reasonable and be prepared to make concessions; after all, this is a man you’ve both loved and lived with for five years. Whatever you do, don’t coerce your partner into signing something he’s not comfortable with. And if you hit on some particularly thorny or emotional issues, find a mediator to talk things over with. Mazel tov!

 

STEVEN PETROW is The Advocate’s manners columnist and author of Steven Petrow’s Complete Gay & Lesbian Manners and can be found online at www.gaymanners.com. or contact him on Facebook and Twitter.

Got a question? Email Steven at [email protected].

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