Same-Sex Prenup Considerations: Consider This Before the Nuptials

The legalization of same-sex marriage in Maryland went into effect on Jan. 1, 2013 after a voter referendum.  Just six months later on June 26, 2013, the Supreme Court struck down part of the federal Defense of Marriage Act, which defined marriage as only between a man and a woman for the purpose of federal tax status and U.S. government benefits.  While the laws governing same-sex relationships have been rapidly challenged and changed in recent years, there are still areas of family law that differ in applicability to same-sex couples in comparison to heterosexual couples.  For example, differences in and definitions for eligibility for employment benefits, child custody, and grounds for divorce are just a few areas of the law that same-sex couples will need to consider when entering marriages.  This article briefly addresses some of the legal nuances that attorneys should flag as they work with same-sex couples to navigate emerging marital laws and craft an inclusive prenup.  Crafting an inclusive prenup is especially important in same-sex relationships as the governing laws are largely undefined and constantly changing, as illustrated below.1

  1. Employment benefits

    Prenuptial agreements often include clauses regarding the amount or percentage of employment benefits, such as retirement and pension accounts, that a spouse may be entitled to upon dissolution of the marriage.  The U.S. Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013)2 held that same-sex couples married in states where same-sex marriage is legal must receive the same federal benefits that heterosexual couples receive, including health, Social Security, life insurance and retirement benefits.3 However, Windsor only applies to states that legalized same-sex marriage, so spouses in same-sex marriages residing in states that do not recognize same-sex marriages may not qualify as a spousal beneficiary for benefits.4 This issue may not arise for same-sex couples who plan to spend the rest of their lives together in Maryland because same-sex marriage is legal in Maryland and, thus, same-sex spouses are eligible for state and federal benefits in this state.5 However, if a same-sex couple married in Maryland moves for work or other purposes to a state that does not recognize same-sex marriage, then it may be necessary to include a clause in the prenup that addresses this circumstance.

  2. Child custody

    Although prenuptial agreements may dictate the distribution of monetary assets and property, they have not addressed issues of child custody.  However, it is important for same-sex couples to consider how they will approach becoming the legal parents of a child born or adopted during the marriage because de facto parent status is not recognized in Maryland.  Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008).  This means that although a spouse may have taken care of a child since birth or adoption by the other spouse, that spouse would not be recognized as a legal parent of the child unless there is a blood relation or that parent also legally adopted the child.  Thus, it is not enough for only one spouse to birth or adopt a child; both spouses would need to adopt the child in order to be recognized as a custodial parent with all the attendant rights in the case of divorce.  Although some states ban same-sex adoption, adoption by same-sex parents is allowed in Maryland.  See Conaway v. Deane, 401 Md. 219, 334-35, 932 A.2d 571, 641 (2007) opinion extended after remand, 24-C-04-005390, 2008 WL 3999843 (Md. Cir. Ct. Jan. 7, 2008) (holding sexual orientation is not a factor in adoption proceedings in Maryland and noting that Maryland’s trial courts have granted same-sex couples “second-parent adoptions,” where a child with one parent is adopted by a second parent without severing the prior-existing parental relationship).

  3. Grounds for divorce

    While Maryland has been progressive in legalizing same-sex marriage and second-parent adoptions for same-sex couples, there are still a few legal definitions that need to catch up with the changing times.  For example, the definition for adultery, which is a ground for divorce in Maryland, is voluntary sexual intercourse between a married person and a partner other than the married person’s spouse.  However, “‘Sexual intercourse,’ judicially defined, ‘means actual contact of the sexual organs of a man and woman and an actual penetration into the body of the latter.’” Robert v. State, 220 Md. 159, 164, 151 A.2d 737, 739 (1959).  Thus, same-sex relations technically may not fall within the definition of adultery because penile-vaginal penetration is not present in same-sex relationships.

    This is an important factor for same-sex couples to consider because prenups often foreclose the payment of spousal support, formerly known as alimony, if a spouse commits adultery, re-marries, or engages in co-habitation with another partner, which is currently defined as “a relationship of living together ‘as man and wife’, and connotes the mutual assumption of the duties and obligations associated with marriage.” Bergeris v. Bergeris, 217 Md. App. 71, 77-78, 90 A.3d 553, 557 (2014) (citing Gordon v. Gordon, 342 Md. 294, 308, 675 A.2d 540 (1996)).  A court might find infidelity in a same-sex relationship as falling under the umbrella of “constructive desertion,”6 but it would behoove same-sex couples to include their own operational definition of terms while the laws continue to update with the changing times.

    Attorneys and clients alike will have to strive to keep themselves updated as this area of family law constantly evolves to further recognize same-sex relationships. Taking these, and other considerations, into account when drafting a prenuptial agreement will help ensure that your agreement remains enforceable in the rapidly changing times ahead.



1 Peter F. Zupcofska, When Couples Are Same Sex, Drafting Considerations Differ, American Bar Association Law Trends & News Practice Area Newsletter: Family Law, (Spring 2010), http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/10_spring_fam_feat2.html.

3 Robert Barnes, Supreme Court strikes down key part of Defense of Marriage Act, The Washington Post, (June 26, 2013), http://www.washingtonpost.com/politics/supreme-court/2013/06/26/f0039814-d9ab-11e2-a016-92547bf094cc_story.html.

4 “This opinion and its holding are confined” to couples “joined in same-sex marriages made lawful by the State.” United States v. Windsor, 133 S. Ct. 2675, 2696, 2695, 186 L. Ed. 2d 808 (2013).

5 Id.

6 There are seven grounds for divorce in Maryland; 1) adultery; 2) desertion (actual and constructive); 3) conviction of a felony or misdemeanor; 4) 12-month separation; 5) insanity; 6) cruelty of treatment toward the complaining party or a minor child of the complaining party; and 7) excessively vicious conduct toward the complaining party or a minor child of the complaining party.  Md. Code Ann., Fam. Law § 7-103.