Giving, Receiving and Division of Property
As you and yours are syncing your calendars of celebratory cheer, we urge to take a moment to be grateful for the great distance we’ve come in the fight for equal recognition of same- sex marriage. We hope you enjoy a good kiss or two under the mistletoe and an abundance of gift- giving.
And when it comes time to swapping gifts, we hope you’ll consider who will get that favorite gift you and yours receive from your mother-out-law if ever there is a separation between you. The state of same-sex marriage recognition impacts a variety of benefits at the federal level, but the distribution of your assets, too, if your relationship suffers a breakdown.
And that’s not just true of joint gifts, it’s true of (nearly) every bit of property that you amass during your relationship (including those furry friends who greet you at your door when you come home from work).
For a married couple, the things that you acquire together during the marriage, with marital money, belong to the marital unit and can be distributed by a court upon the dissolution of your marriage. If you are not married in the eyes of the law (and that includes the folks who got married in one state but reside in a state that doesn’t recognize those unions – and there are a lot of those states), the laws that apply to you are, put simply, different and can yield unintended, inequitable results (for instance, the partner who makes the most money and who can demonstrate that she or he bought the bulk of the property, may walk away with that property, leaving a long-time partner with little or nothing).
So, in this ever-changing legal landscape, what’s a couple to do? You need to talk to an attorney about doing a property agreement (known by a variety of other names, but similar to a marrying couple’s prenuptial agreement). The time for talking is never better than during this season of cheer and having a meeting of the minds reduced to a legal agreement now can save you money and heartache during relationship rough patches. And, for those of you who are in newer relationships, these heart-to-hearts can keep the two of you (or get the two of you) on the same page early on.
We hope you find yourselves blanketed in the warmth of family and friends. And remember, we welcome your questions and encourage you to ask them before your big day.
Heather & Emily
Heather McCabe and Emily Russell are family law practitioners who regularly serve the LGBT community in all kinds of legal affairs – from adoptions to dissolutions/divorces. McCabe has taught family law and legal writing and has been on the faculty at Georgetown Law, American University, and University of Baltimore. Russell worked as a lobbyist before coming to the law. Whether through document drafting, mediation, collaborative law, or litigation, McCabe and Russell are committed to the creation and security of the unique families they serve.