Family Law Matters Blog

President Barack Obama made history by being the first president to mention gay rights in his inaugural address. He called for the equal treatment of gay and lesbian people, declaring that “our journey is not complete until our gay brothers and sisters are treated like anyone else under the law–for if we are truly created equal, then surely the love we commit to one another must be equal as well.” This past election season, gay marriage passed in voter-approved ballot measures in Maryland, Maine and Washington, and the Supreme Court will hear oral arguments in March in two highly anticipated cases that deal with the rights of same sex couples to marry.

The legal landscape of gay marriage is evolving. Gay marriage is now recognized in the District of Columbia and nine states, including New York. Under New York’s Marriage Equality Act, same-sex couples enjoy the same benefits, rights and obligations of marriage that different sex couples receive, including joint property ownership and receiving spousal deductions for state estate tax purposes. Unfortunately, same-sex couples do not receive all marital benefits because federal law has yet to recognize same- sex marriage.

Often, portability issues become the biggest hurdle for same-sex couples (i.e. whether the rights and privileges of a same-sex marriage will be recognized by other states). For example, if a same-sex couple is married in New York but then moves to a state where gay marriage is not recognized, the marital protections the couple enjoyed in New York may cease to exist. Portability issues may affect a same-sex couple’s ability to obtain a divorce, transfer taxes, or obtain custody over a non-biological child. The rights of same-sex couples vary greatly state by state, which makes it especially important for same-sex couples to take advantage of available legal protections in order to put themselves in the best position possible when dealing with any future portability situations. Before trying to tie the knot, couples must think about talking with an attorney about drafting a pre-nuptial agreement, drafting a will, setting up a trust, appointing a heath care proxy, among many other issues. If you have a non-biological child of the marriage, completing a second-parent adoption will help to ensure that other jurisdictions will respect both parents’ status.These legal protections will help preserve a couple’s wealth and protect their rights as they navigate through a complicated set of state and federal marriage laws.

Under the Defense of Marriage Act (DOMA), federal law recognizes a marriage as between “one man and one woman.” Thus, same-sex couples are at risk of being ineligible for certain federal programs like Social Security and Medicaid benefits. Same-sex couples also face additional challenges with federal estate taxation and filing federal income taxes. For example, a same-sex couple filing a state joint tax return in New York is unable to file a federal joint tax return. United States v. Windsor, one of the two cases being heard by the Supreme Court this spring, deals with the issue of a same-sex couple being deprived of federal estate taxation benefits. In Windsor, Edith Windsor was forced to pay over $300,000 in federal estate taxes on her deceased wife’s inheritance. Under federal estate tax laws, if a husband dies, his wife may inherit his estate without any tax consequences. The Second Circuit, the highest federal appellate court in New York, ruled in favor of Windsor and held that DOMA’s definition of a marriage as between “one man and one woman” is unconstitutional.
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It is not uncommon to hear stories about betrayal in a marriage. Whether it makes national headlines or involves the marriages of our neighbors and friends (or maybe even our own marriages), we may feel outraged, embarrassed, or sympathetic for the spouse that was betrayed. Over the years, I have had clients come to me after a betrayal seeking to stay in the marriage. They want to protect themselves from any further harm.

Even if trust has been broken, both spouses may want to pick up the pieces, work through problems, and move forward with the marriage. A postnuptial agreement (“postnup”) is a flexible tool to help a married couple rebuild trust and create goals for a fulfilling life together. In other words, it can be a creative way to help make the marriage work.

A postnup is a legally enforceable private agreement that a couple enters into after marriage (unlike a prenuptial agreement, which a couple executes prior to marriage). Generally, it is an opportunity for a couple to create understanding about important financial matters. Sometimes, it is the first time both spouses fully understand the family financial picture and make explicit the financial (and other) terms of the union.

The postnup can cover a range of issues, such as the parties’ financial goals, paying off debts, and the distribution of property and other assets, including the martial residence. Creating a postnup can be a way to re-build trust in a marriage and establish a solid financial plan. When forming a postnup, it is crucial that each party honestly communicates his or her needs to the other party.

Talking openly about money, for example, can be difficult if you and your spouse have not done so already. However, an attorney trained in mediation and collaborative law can facilitate the discussion and help you and your partner tackle the financial issues that need to be addressed. When both parties are on the same page and in agreement on financial matters, it provides the couple with a sense of security and makes it easier to move forward in the marriage.

When there is a breach of trust, it does not necessarily mean the marriage is over. The creation of a postnup allows the spouse that was betrayed to voice his or her needs, which can be empowering. It also provides the person an opportunity to exercise a certain level of control and may restore his or her place–and faith–in the marriage. Where both spouses want the marriage to continue, creating a postnup that addresses the couple’s finances is a viable and constructive solution to help preserve the marriage.

A postnup is a contractual agreement between two parties. Therefore, a legally enforceable postnup must follow certain requirements in order for it to be held valid under the law. Both parties must have capacity to enter into the agreement. Generally, a valid postnup must also be in writing and shall contain the written signatures of each party. There also must be adequate consideration in order for a postnup to be deemed legally enforceable. Consideration is where one party agrees to give or do something in exchange for a promise or the performance of an act by the other party.
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It’s Not All Equal After Same-Sex Couples Say “I Do”

New York Postnuptial Agreements: Moving Past Betrayal