The Respect for Marriage Act provides statutory authority for marriages between same-sex individuals and is a positive, monumental step in placing LGBTQ+ relationships on the same legal footing as heterosexual marriages. However, when entering into an LGBTQ+ partnership of any kind, there are some additional legal documents you’ll want to prepare in order to safeguard yourself, any children that either party may have from a previous relationship, or any future children you may choose to bring into your family.
A prenuptial agreement is a written and lawful agreement between two individuals who have yet to marry outlining how they and their potential future family will operate after marriage. It typically includes details on how finances will be managed and divided in the event of a divorce.
This type of legal document can also address how finances, business interests, and possessions will be divided should the marriage end or one partner passes away. By taking the time to plan for the future before tying the knot, both parties will enter into the marriage with a full understanding of the responsibilities both parties are agreeing to take on. This may also help guard against conflicts at a later stage.
Many people choose to write a prenuptial agreement to safeguard the inheritance of a child from a previous relationship, or in cases where one individual is part of a business where the marriage may have tax implications. They can also maintain separation of assets that either party fully owned prior to marriage, such as property or personal finances. To be lawful, a prenuptial agreement must be entered into by two consenting individuals, both at least 18 years old, with sufficient mental capacity to understand the seriousness of the document that they are signing
Domestic Partnership Agreement or Marriage License
In New Mexico, marriage licenses are the same regardless if the relationship is heterosexual or LGBTQ+. It acts as confirmation that the couple is legally married and carries with it the legal protections that marriage entails. In cases where an LGBTQ+ couple chooses to not pursue marriage but has a long term relationship, they can instead choose to write a domestic partnership agreement. This document can be tailored to their unique circumstances and usually includes provisions for living together, jointly owning property, sharing financial responsibilities, child care responsibilities, and how custody will be handled for any children from a previous relationship. Please be advised that New Mexico does not recognize domestic partnerships, however the Courts will honor agreements between you and your partner in many circumstances, so it is advisable to prepare such an agreement.
Following marriage, an LGBTQ+ couple may wish for their parental rights of any children of either partner to be fully protected by state laws. Adoption is one way of achieving this aim. Known as second parent or step parent adoption, this process can give the partner of the biological parent equal parental rights. Additionally, should you choose to have a child and one party carries the child, the other parent will need to pursue a adoption to secure their parental rights over their children.
If an LGBTQ+ couple wishes to adopt a child to which neither has any biological connection, the usual court process will be followed to establish that the couple is suitable to raise a child and that appointing them as adoptive parents to a particular child. This process will largely be conducted in the same way as it is for heterosexual couples, but there are some key differences. Working with an attorney who has experience in LGBTQ+ adoption law can help you get the guidance you need to start your family.
Wills & Trusts
To ensure that your estate is distributed in accordance with your wishes after your death, you’ll need to write a will. In cases where someone dies without a will, their estate will be distributed according to New Mexico intestacy laws, and this may mean that your LGBTQ+ partner doesn’t receive the assets or financial support you intended for them.
Your will must list all of your assets and detail who you wish to receive each asset after you’re gone to ensure that your assets are distributed in accordance with your wishes. If you wish for your estate to be divided between your partner and other parties, such as children or relatives, you must be clear in your will about this division in your will as it is unlikely to occur by operation of law alone.
There are a number of legal documents that can safeguard your financial independence and long-term relationship, and tailored advice is available from the experienced team at the Law Office of Dorene A. Kuffer. Contact us to explore your options and determine what documentation you will need prior to cohabiting with or marrying your LGBTQ+ partner.