The Supreme Court’s landmark decision in Obergefell v. Hodges on June 26^th will afford same-sex couples in Tennessee the same liberties and rights as traditional couples. Those liberties come with some potential pitfalls, however – especially if you and your partner have co-mingled accounts or a joint business, or if one of you brings substantial assets or funds into your new marriage. That is because under Tennessee law, spouses who wish to divorce will have their assets and debts divided equitably under the law.

Without proper precautions, you and your spouse could face legal challenges when it comes to dividing your property, setting up your legacy, protecting your business or ensuring that your children are taken care of in the future. One of the best ways to protect yourself and your family is to sign a pre-nuptial agreement before you get married (or a post-nuptial agreement if you have already wed in another state).

Why couples sign pre-nups

Pre-nuptial agreements get a “bad rap,” as they say, because many couples feel anxious or uncomfortable about discussing them. After all, it may feel as though you are planning for your divorce before you even get married. But pre- and post-nups are about protecting yourself, your spouse and your families in the event of unexpected life events. Some of the more common reasons include:

• Protecting children from previous marriages. Let’s say you or your spouse had two children from a previous marriage. By signing a pre-nup, you can ensure that all children will be provided for in the event of an untimely death. Pre-nuptial agreements can ensure that you and/or your spouse’s children receive their inheritances, are beneficiaries of trust, or just about anything else that you want to include.
• Keeping your business safe. If you own your own business before you get married, you want to ensure that it cannot be broken up or sold off in pieces without you choosing to do so – especially if your spouse does not work for or with you. A pre-nup lets you keep control of your business at all times.
• Preventing nursing homes from taking everything. If you or your spouse becomes ill and needs to be placed in a residential care facility, the other spouse could lose everything. By signing a pre-nup, you can ensure that the spouse not living in a nursing home is not forced to pay for the other spouse’s care in the event of a divorce.
• Ensuring charitable giving. If you and your spouse bring substantial assets into a marriage, but wish to distribute those assets to various charities throughout your life or even in death, a pre-nuptial agreement can ensure that your charitable endeavors do not go by the wayside.
• Keeping separate property separate. Many married couples have joint accounts for things like bills or medical expenses, and separate accounts just for themselves. A pre-nup could help you and your spouse avoid any complications regarding those accounts later, if you both say that the assets in those separate accounts cannot be divided.

It is a common myth that if someone is being asked to sign a pre-nuptial agreement, then they are getting “screwed”.  This is not true.  A pre-nup doesn’t have to provide that a spouse gets nothing in the event of a divorce…it can provide for what a spouse does get in the event of a divorce, and it can serve as source of security to the economically disadvantaged spouse.  And most of all, it can be decided when everyone is thinking clearly and rationally instead of in the throes of a divorce action.

Yes, it can be hard to talk to your loved one about pre-nuptial agreements, but ultimately they can protect you and your spouse, as well as your children. If you are unsure whether or not a pre-nup is a good idea for you, we invite you to visit the law office of Miller Upshaw Family Law, PLLC in Nashville. Together, we can review the process and help you make the right decision about your future.