Since the federal legalization of same-sex marriage in 2015, there has been a wide variety of cases that deal with the legal conflicts of that sweeping change and previous language in older statutes. The fight for equality continues but there are ways for couples to smooth over the complications with a prenuptial agreement.
Many may consider the prenup to be a sort of insurance policy on marriage. There can also be a stigma that a prenuptial agreement implies the marriage is somehow doomed to fail. In reality, a premarital contract can establish parameters that help alleviate disputes.
Parentage in language alone?
The Arizona Daily Star reported in 2018 of a court case where a divorced lesbian couple fought over specific parentage terminology. They had a child artificially inseminated during their marriage and the spouse that gave birth argued that since Arizona’s language specifies with male-gendered terms, she did not have to share custody with her ex—as she is a woman, not a man. The U.S. Supreme Court ruled in favor of the ex-spouse saying she had as much a right to claim parentage as if she had been a husband.
Settling the subject with agreements
Premarital contracts can avoid these complex situations. As GLBTQ Legal Advocates & Defenders (GLAD) reports in their legal overview, Massachusetts considers children born to married couples as theirs regardless of either parent’s gender or means of birth. The state also has a process for which unmarried parents can establish paternity and legal parentage with a voluntary acknowledgment of paternity. Despite the gendered language (“mother” and “father”), any couple should be able to use it. Clarifying this with a premarital contract can make doubly sure to cover all bases.
