Kristine Guerra

The Indianapolis Star

For same-sex couples who finally gained the right to marry after years of waiting and fighting for it, planning for a potential divorce may not be the most romantic option.

But legal experts say a prenuptial agreement would be a smart and logical choice for couples who have been together for a long time before marriage.

Lois Liberman, a New York-based matrimonial attorney, said it's a step she recommends to same-sex couples who have accumulated assets together for years before getting married.

In the event of a divorce or death, Liberman said, laws in states where same-sex marriage is now legal won't take into account the 10 or 15 years couples were together before marriage.

"It's kind of a downer, right? You're fresh from engagement, now all of a sudden, you're talking about the two most horrible things like divorce and death," said Liberman of Blank Rome LLP. "Prenuptial agreements may be unromantic in nature, but they really can be an essential tool for people who have been together for quite some time."

Kathy Harmon, an Indianapolis family attorney, said a prenuptial agreement is advisable for same-sex couples who want to protect assets they owned before the marriage. She said it can cover how assets that couples have acquired together should be divided.

It can also answer questions about how custody of a child should be handled, particularly if that child was born or adopted before the marriage, Liberman said. In the event of death, it can address what the surviving spouse is entitled to.

"I heavily warn and discuss with couples who've been together a long time to take a look back at their relationship that started before the marriage and memorialize what they believe to be their understanding at that time," Liberman said. "What did we mean the last 10 or 15 years regarding our home, property and how to support each other?"

Liberman said the same advice applies to heterosexual couples who've stayed together for years before getting married. For young couples — same-sex or otherwise — who may not have accumulated assets together yet, a prenuptial agreement may not be necessary.

Harmon said couples today — heterosexual and homosexual — may be more accepting of the idea of a prenuptial agreement.

"Prenuptial agreements are tricky because you are in essence planning for a potential divorce at the same time you are planning a life together with someone," she said. "However, I think they are more common now that people are getting married later in life and thus often have more property they have acquired separately at the time they get married. So some of the stigma has been removed."

She said same-sex couples who have been together for years may be more receptive to getting a prenuptial agreement, especially those who already have drafted wills, powers of attorney and cohabitation agreements to govern their relationship.