Spousal Maintenance – As state guidelines determine the duration of spousal maintenance based on the length of the marriage, they may not result in an appropriate outcome in instances where a couple’s marriage-like relationship predated legalization of same-sex marriage and their marriage date. To ensure that a proper outcome is reached, such couples may consider entering into a post-nuptial agreement to clarify that their marriage is to be considered from the date their marriage-like relationship began and not the date of the marriage.
Property Division – Similarly, the state guidelines for determining marital property may not result is proper distribution of the same in instances where a couple’s marriage-like relationship predated legalization of same-sex marriage and their marriage date. Such couples may also consider entering into a post nuptial agreement to clarify that their marriage is to be considered from the date their marriage like relationship began and not the date of the marriage.
Custody/Allocation of Parental Responsibilities and Parenting Time – In some instances the statutory guidelines may not provide equitable parental responsibilities and/or parenting time unless proper procedures have been followed to establish parentage and parental rights with respect to both spouses. Such instances may include situations where one spouse is the biological parent of the child and the other never legally adopted the child; or cases where neither spouse is a biological parent and only one spouse legally adopted the child. To protect the parental rights of both spouses, ensure equitable distribution of parental responsibilities and preserve the child’s relationship with both parents, the couple must ensure that proper applicable legal documents, such as joint adoption papers and/or parenting agreements, are put in place during the marriage.
