Issue:  Vol. 47 / No. 50 / 14 December 2017
 

In a New York minute: Nothing wrong with pre-nups

Guest Opinion


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In a few days, same-gender couples will be legally marrying under New York law for the first time. Regardless of how you feel about the institution, there is no escaping that at this moment in U.S. history, equal access to and recognition of marriage is a hot topic.

While there are numerous meaningful ways people create chosen families and relationships, marriage is one of the very few upon which state and federal government and various private entities choose to bestow many benefits you can't get through any other means. Many of these benefits are so basic they ought to be considered universal rights – think health care. Because these benefits are often attached to only this very narrow segment of relationship-recognition (marriage, domestic partnership or civil union), then most reasonable people who newly qualify for access to that recognition will need to ask themselves: should we get married? After all, who doesn't need health care? Marrying may be the one way to get it. But, are there any drawbacks to marrying?

The New York milestone reminds us again that opportunities for same-gender couples to ask and answer these questions have come and will continue to come at a fast pace. As witnessed in California, those opportunities arise in a flurry of media attention – as well as amid real or perceived uncertainty about how long those rights will remain accessible and amid questions regarding future recognition in other states and by the federal government.

Fueled by this frenzy of attention and uncertainty, many same-gender couples will be tempted to run out and "make it official:" grab your rights now before they disappear. And for many, there is a draw to marrying in the midst of that often longed-for, but so rare, collective celebration of the significance of our love: the romance of marrying in this moment of history. The romance of this historical moment for same-gender couples is not only about the love between two individuals, but also and perhaps even more so about the feeling of finally "belonging" and having that love collectively embraced and celebrated. So, it makes sense that rash decisions will be made. Heterosexual partners in this country have been making those rash decisions for a very long time (though perhaps with a less-than-conscious need for the rights and community/social belonging they may take for granted).

If you are part of a same-gender couple, you may be tempted to seize the moment and rush to New York to marry. It's relatively easy to do: New York has no residency requirement to marry, and unlike many other licenses (ever gotten a driver's license?) – a marriage license requires no test or proof of knowledge of its consequences.

Yet, there are indeed many consequences; a New York marriage for a California same-gender couple is not just symbolic. As uncertain as some of the current legal landscape for same-gender marriages is, it is now certain and clear that same-gender California couples who legally marry in New York or elsewhere return home with all the rights and responsibilities of marriage that the state of California has to offer (except the actual name "marriage").

Marriage in another jurisdiction is a big deal with real and concrete rights and responsibilities in California. There are so many such rights and responsibilities that it is impossible to outline them here or in any other brief writing; they are the sum total of California's family, probate and other statutes and related case law or, in other words, they are in your local law library's entire family law section and the many ways those statutes and court rulings are being interpreted and practiced daily in many settings. We say this not to overwhelm you, but to hopefully be clear that marriage is serious and has significant legal and financial implications.

That said, we do indeed encourage you to seize this moment. This is a good moment to think about marriage and relationships. Our recommendation: first pause, ask some questions, and inform yourselves and your partners and communities about the legal and financial meanings of marriage. And then, engage in conversations about whether marriage is a good fit for your specific circumstances and goals.

When you have this information and have engaged in these conversations, you can then decide: (a) Yes, this is the license I want, exactly as-is; or (b) By and large, this license sounds good to me, but I want to change a few things through a pre-nuptial agreement; or (c) No, I do not want this license. Any of these decisions are good decisions as long as they are informed, and done intentionally.

In most cases, making these informed decisions is its own significant journey. Read the legal self-help books (Nolo Press has got some great ones) and check the websites of http://www.nclrights.org, http://www.ecqa.org, and http://www.lambdalegal.org for basic information. Talk with and listen to yourself and your partner. And, yes, consult with a family law lawyer and perhaps a tax professional. What are your specific and real circumstances and goals and how would marriage further or hinder or complicate those goals? Are there other or supplementary ways to meet some of those goals that are most important to you (i.e., powers of attorney or co-habitation or co-ownership agreements, etc.)?

A lot of these conversations – and this process – may be difficult. Most of them have to do with intimate issues such as money, successes, failures, illness, and death; subjects that, frankly, those of us raised in the U.S., no matter our class background, have little social training or experience talking about openly and honestly. However, difficult conversations can lead to deeper understanding, and to greater intimacy. In fact the ability to have these difficult conversations is an important key to a strong relationship. And stronger relationships of all kinds make up strong communities.

We recognize, too, that these conversations may also reveal that some partners are actually more incompatible than they realized. As difficult as that realization may be, as family law mediators and attorneys, we have worked with many couples who wished they had those conversations and revelations before they married, rather than after.

This moment in history is embedded in a broad and complex historical web of social justice and liberation movements formed and fueled by discussing many difficult questions. Despite the current hype, marriage equality – while perhaps a significant campaign victory – was not the ultimate goal of these movements. In the big picture, we want much more than marriage equality can offer. And, right now, in your particular and specific life, you may actually want less. We owe it to ourselves and our movements to enter these state-sanctioned relationships mindfully: educate yourselves as to what marriage really means, and thoughtfully consider if this is what makes sense for you. The conversations will be worthwhile, no matter the outcomes.

Heba Nimr (http://www.hebanimr.com), Dylan Miles (http://www.milesfamilylaw.com), and Charles Spiegel (http://www.charlesspiegellaw.com) are attorney-mediators who practice in the Bay Area.

On Monday, July 25, from 7 to 9 p.m., the authors will facilitate a workshop, "Pre-Nup is Not a Dirty Word." The workshop is free, although donations are accepted. It takes place at the LGBT Community Center, 1800 Market Street in San Francisco. To RSVP, email mailto:mcle@balif.org.






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