Prenuptial Agreements & LGBTQ+ Marriages: What You Need to Know

A prenuptial agreement (colloquially referred to as a “prenup”) is written prior to signing a marriage certificate, whether in a heterosexual or LGBTQ+ relationship. Prenups are a wise decision in a variety of situations to ensure wealth, property, businesses, and debt acquired prior to marriage by either spouse are legally assigned and protected. 

A prenup limits, to the extent possible, conflict in the event of a divorce, separation, or even untimely passing of one spouse. Obviously a prenup may not be the romantic notion you want to consider before tying the knot, however it is undeniably a good idea. Here’s what you need to know about prenuptial agreements:

Prenups: What’s Included

A prenup allows you to consider what would constitute a fair and reasonable outcome in the event of a divorce prior to getting married. This relieves the emotional pressure associated with the breakdown of a relationship and allows for conversations to take place in a less tense and contentious manner, reducing the cost of future divorce and preventing acrimonious decisions.

A prenup protects assets owned by either party that one spouse doesn’t want to become part of the joint assets after marriage or it conversely could ensure that “separate” (i.e.: assets acquired by one spouse prior to the marriage) are considered community assets in the event of separation or divorce. A prenup works by detailing how assets would be divided in the event of a separation or divorce and outlines such things as debt obligations each spouse would be responsible for, how pensions or life insurance would be divided, and what would happen to any jointly owned or separately-purchased property. In cases where one spouse owns a business or is in a business partnership with a third party, a prenuptial agreement can protect the integrity of that business in the event of a future divorce.

Certain aspects of child custody can additionally be included in a prenup. In the event of a dispute, the best interests of the child(ren) will invariably be the standard by which the Court determines custody, but a prenup is a written agreement like any other. Therefore, such things as paternity, general wishes for the raising of a child, and an outline of a timesharing schedule can be included and will, at the very least, be a good indicator for the Court in the event of a future dispute.

For LGBTQ+ couples, designating property owned prior to the marriage as community property (and therefore divisible in divorce along a 50/50 guideline) can be a very wise decision where LGBTQ couples often find themselves in long relationships prior to marriage due to state same-sex marriage laws. This can ensure that property that would otherwise be considered separate property according to New Mexico law is considered community property.

LGBTQ+ Divorce Law

With the state of New Mexico giving equal rights for marriage, it’s no surprise that the laws for LGBTQ+ divorce are the same as those for a heterosexual marriage. From a legal perspective, this means that a divorce will be handled in the exact same way, with assets and wealth divided in accordance with the prenuptial agreement, by mutual agreement of the divorcing couple, or as directed by the courts. Although the law treats both queer and heterosexual divorce the same way, LGBTQ+ couples do face a number of challenges that are unique to their situation.

A “Wrapnup”

A prenup is an incredibly useful legal document recommended for all LGBTQ+ clients who plan on pursuing marriage but have acted as a married couple for decades but were not legally married. For these clients, our team has a solution.

At the Law Office of Dorene A. Kuffer, we coined the term “wrapnup” back in 2015. This is essentially a prenup or post-nuptial agreement (one that is entered into after marriage) that accounts for the time a couple has already committed to each other, their shared assets, investments, children, pets, etc., and tailors the document to protect a couple’s interests and those of any descendants. A “wrapnup” is designed to bring the previous relationship of a couple forward into their marriage and incorporate it into the marital (“community”) estate.

Division of Property

Unless a prenup or “wrapnup” was written prior to marriage, all property, assets or debt acquired by either spouse prior to marriage, even if purchased for joint use, are considered sole ownership under New Mexico law. This includes joint bank accounts or savings, which are viewed as owned by the primary account holder unless a prenup specifies otherwise. Only assets or debt acquired after marriage will be treated as community property and divided equally between the divorcing spouses. This is of particular concern for couples who were together for many years prior to marriage.

Child Custody

In an LGBTQ+ marriage, there’s typically a strong likelihood that at least one parent isn’t biologically related to their child. This can create a complicated legal scenario when it comes time to determine future custody arrangements. In cases where both parents have raised and supported the child or children equally, New Mexico law generally considers them to have equal parental rights. Should a legal separation require court intervention to reach a satisfactory solution, the best interests of the child will take precedence over any biological connection.

In some instances, gender pronouns will be inaccurate, and unconscious bias within the courtroom can create tensions. In these cases, an attorney with experience handling LGBTQ+ divorce is essential to support an LGBTQ+ couple in navigating these complications and delivering a harmonious outcome. Our team is experienced and caring, and we have the tools to ensure that your marriage will start on sound footing. To find out how we can simplify the marital experience for you, contact us today.