Rhode Island Divorce: Premarital Agreements between Same Sex Couples

May 9, 2013 in Rhode Island Divorce, Same Sex Marriage

With same sex marriage now a reality in Rhode Island, many long term partners are seeking to formalize their relationship through a State recognized marriage.   State recognized marriage has many benefits, but also has many legal consequences that persons entering into such a union should be aware.  Specifically, in Rhode Island, marriage creates a “marital estate.”   The marital estate is comprised of several different assets.  First, any property that one partner brings into the marriage can become a part of the marital estate. This happens if the other person in the relationship contributes to that asset’s appreciation or maintenance over time, or that property is subsequently held jointly by both spouses.  A very easy example is a pre-marital home.  In this example one partner owns a house before the marriage.  After the marriage, both partners contribute to the mortgage payment.  If the parties later divorce, the contributing partner is entitled to any share of equity in that home that occurred during the course of the marriage due to his or her contribution.  Under Rhode Island law, this is called “transmutation.” The home transmuted to marital property once the other partner began contributing to the upkeep and maintenance.   Furthermore, if the pre-owning spouse puts the other spouse on the deed to the property, it can be considered a “gift” and therefore transmuted.  Thus, something pre-marital has now become a marital asset to be divided between the parties.

Under Rhode Island law, there are many more factors to consider when contemplating a marital estate.  However, most people, on the eve of marriage, are not contemplating the end of the marital relationship.  That being said, a premarital agreement can be a very important part of marriage relationship, especially for partners who have been in a committed relationship for a long period of time but kept their assets separate, and partners who have some disparity in property or accumulated assets at the time of marriage.  While never an easy topic of discussion, a premarital agreement can be a very useful tool to clarify assets, rights, liabilities, and to provide peace of mind to both future spouses.

One advantage of entering into a premarital agreement is that each party must identify the assets he or she is bringing into the relationship and which ones he or she desires to remain separate property during and potentially after the marriage.  Additionally, this allows the future spouses to identify the assets that were purchased together and that they will consider marital assets moving forward.  Finally, clarifying assets allows future spouses to be creative in assigning rights and actions should the parties divorce.  For example, a couple might have jointly purchased a piece of art or furniture.  The parties can delineate that, upon a filing of divorce, the item is to be sold, and the proceeds spilt equally or along a percentage, or that one party to the marriage will keep this item.  Thus, not only is the asset identified, but a specific action is identified upon the dissolution of the relationship.

Another advantage to a premarital agreement is that the parties identify their respective rights and liabilities – joint and individual.  Again, the parties may have opened a joint bank account, or hold credit cards or investment accounts jointly or in their individual names.  Upon a filing of divorce, a premarital agreement will not only delineate rights to those assets, but also to debts that the parties may bring into the marriage. Thus, if one party enters into the marriage with an individual credit card in the amount of $10,000.00, the parties can agree that if the marriage should end that debt will belong to the original card holder.  Thus, not only assets, but debts can be determined and liabilities identified.

A further advantage to a premarital agreement is that the parties can outline the right of each party to alimony.  In a premarital agreement, alimony can be expressly waived, or a specific amount can be identified for one party with limits as to time frame and amount.  In Rhode Island, there are strict statutory requirements for the reward of alimony.  A premarital agreement can outline the rights of the parties to alimony in order to simplify the divorce process.

Lastly, a premarital agreement allows both parties to proceed knowing that the future, in terms of the marital estate, is somewhat secure.  Rather than a harbinger of a doomed marriage, a premarital agreement allows both parties’ peace of mind in knowing that, should the need arise to execute the agreement, each party put thought and effort into protecting his or her individual assets, the spouse’s joint assets, and his or her financial future.

Premarital agreements have several statutory requirements for enforcement.  Therefore it is important to make sure that your agreement is drafted and executed according to Rhode Island law so that it is enforceable in court should the need arise.

If you need help navigating the Rhode Island Divorce or Martial process. Please visit Rameaka Law website and contact us.