Same-sex couples are nothing new, and neither are the laws that govern the relationship of marriage. What is new is that same-sex couples may now, in New York, avail themselves of these established laws for the first time because of the Marriage Equality Act.
Although same-sex couples have been seeking the right to marry for many years, many have not studied the marriage laws in anticipation of the right becoming available to them. The time has come for them to do so.
Some of the legal advantages of marriage are well known to most people. The right to be listed as a spouse on a health insurance policy is a very important right that is now available to the partners of insured gay people through marriage.
Another such is the right to file a joint tax return, which can result in a lower tax bracket. But others are not so well known.
A major difference between couples who are married and couples who are not concerns who owns property acquired by either or both of them. For unmarried couples, property belongs to whoever has title to it.
For married couples, the same is true, but in the event the couple enter into a separation agreement or start a divorce action, title no longer controls; property acquired during the marriage is, with some exceptions, marital property to which each of the two people has legal rights.
Same-sex couples who have been together for many years, as many such couples have been, may wish to analyze who owns what and where it will go in the event the couple divorces or one party dies. Such an analysis is best done by an attorney familiar with these areas of the law. After such an analysis, there are steps couples can take to help insure that their property ends up where they want it to end up. The two major instruments for accomplishing this are the prenuptial agreement and a will.
A prenuptial agreement is a contract between parties about to be married that provides for, among other things, distribution of property in the event of a divorce. A prenuptial agreement that is fair and freely contracted for is enforceable in a subsequent divorce case.
Having distribution of property decided ahead of time in a prenuptial agreement can mean very significant savings at the time of a divorce; a prior stipulation is evidence that does not have to be proven in court. Proving the same facts at a trial can take considerable time, especially if the marital estate contains numerous assests, and divorce attorneys are paid by the hour.
Although the popular press has been making fun of attorneys' cheerful attitude toward the new business made available to them by the Marriage Equality Act, the reality is that major decisions now have to be made by same-sex couples that could never be made before due to the legal impediments, and these decisions are going to involve deep feelings and extensive property rights.
The sooner same-sex couples analyze and provide for their new legal circumstances, the better those financial circumstances will be in the future for the couples and their children.
Peter J. Fiorella Jr. is a prominent Buffalo matrimonial and family law attorney and author.