THE BLOG
12/06/2013 09:58 am ET Updated Feb 05, 2014

When the Vows Break: Why Pre-Nups Are Essential for Same-Sex Marriage


I know what you're probably thinking.

Illinois finally legalizes same-sex marriage, and leave it to the divorce lawyer to bring up the elephant in the room -- the prenuptial agreement.

Trust me, I'm bringing it up for all the right reasons. And it is more important for same-sex couples to consider a prenuptial or post-nuptial agreement than for many heterosexual couples.

Yes, it's not too late. If you are already married and didn't do a pre-nup, you can sign a post-nup, which will address all the same issues discussed below.

For same-sex couples, the truth is that marriage will not give them all the rights and benefits they anticipate, and I would argue that it is critical or a gay person to obtain premarital legal counseling.

The biggest issue remains how legal same-sex marriage is recognized in states other than where the wedding ceremony is performed.

For instance, a prenuptial agreement provides married gay couples the ability to execute powers of attorney and health care directives -- something their legal marriage license won't afford them if an emergency happens in a state where same-sex marriage isn't equal.

It's important for money matters, too. A prenuptial agreement is the best way to protect a couple's estate, including capital gains and the transfer of retirement and pension benefits in the event of death. Issues of property distribution, protecting pre-marital assets, supporting the non-working spouse, and all related financial matters that may not be covered under a particular state law, can be addressed in a pre-nup.

And don't forget about the kids. In most states, a child born into a marriage is presumed to be of the marriage. But same-sex couples can't count on that. A pre-nup could include proactive steps to allow the non-biological parent to adopt the child. this is important for issue involving custody, visitation and child support, rights and obligations which the non-biological partner might otherwise not have in most states.

Plus, if the marriage does end in a split, a prenuptial agreement could include a provision where the couples agree to file for divorce in a state where same-sex cases can be heard, or required mediation to resolve any other legal issues that might arise.

Prenuptial agreements might not be the kind of thing that couples in love -- whether there's gay or straight -- want to think about before saying, "I do," but sad reality is that "marriage equality" isn't all that equality" isn't all that equal in America, yet.

And that's something to consider.