Lawyers actually recommend LGBT couples can get prenuptial agreements, as they can help protect your finances in the still murky area of same-sex family law. However, if you have your agreement drawn up in one state, and then file for divorce in another state that happens to be one with very stringent standards for prenuptial agreements, the agreement can be considered non-binding. This is an issue for heterosexual divorcing couples as well. Prenups are definitely a good idea, but they can’t protect you in every scenario.
Make sure you’re protected
A lot of the estate and financial planning that we recommend in our same-sex marriage planning tool are ways to contract privately for the same rights a heterosexual couple is getting automatically. So while they are designed with the idea that your union will be “til-death-do-us-part” (like affidavits of burial/cremation), there’s a long track record within straight divorce law to rescind or revoke these documents. It’s worth it to put these protections in place! They can be removed if your marriage breaks up.
Durable power of attorney in divorce
One particular step recommended in this tool can be a big problem when couples divorce, however. That’s the durable power of attorney. There are many cases of couples who gave each other durable power of attorney as part of their estate planning, then go through a bitter divorce where a spouse abuses power of attorney to steal from their ex. Banks and financial institutions can rely on durable power of attorney until they’re formally notified it’s been revoked, in some cases. Be careful and consider revoking durable power of attorney immediately at the beginning of any divorce proceedings.
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