Whitewood: Same-Sex Marriage Legal in PA

Same-sex marriage is now legal in Pennsylvania. In Whitewood, et al. v. Wolf, the United States District Court for the Middle District of Pennsylvania (Judge John E. Jones, III) discarded Pennsylvania’s law defining marriage as “between one woman and one man” to “the ash heap of history.” Judge Jones determined that the law violated the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.

Judge Jones’ decision not only invalidated Pennsylvania’s law prohibiting same-sex couples from legally marrying, but also required that Pennsylvania legally recognize same-sex marriages validly performed in other states. I will not dwell on the legal technicalities of “rational basis” versus “heightened scrutiny” review set forth in the opinion. I want to address the practical consequences of this decision.

Same-sex marriage is now legal in Pennsylvania. The practical consequence to me is that I need to revamp my website to take out all those cautions about same-sex couples not having the legal protections afforded to married couples – BUT only if they are legally married. Married couples, regardless of gender, are now treated equally. Unmarried couples, regardless of gender, still do not have the legal protections afforded to married couples. That means unmarried couples must still take additional steps to secure their financial and personal relationships.

The practical consequence to same-sex couples who want to be married is that their marriages are now legally recognized in Pennsylvania. So same-sex couples who actually get married don’t need to bend over backwards trying to make their legal relationship the same as those of other married couples anymore. The big question for same-sex couples who now wish to get married in Pennsylvania is whether they need a prenuptial agreement and how they’re going to arrange their financial life.

Do I Really need an Attorney?

Yes. You need an attorney. I will qualify that by saying that if you are dealing with any kind of family law issue, you need an attorney. You need someone objective, rational and educated in the law looking out for your best interests. You need someone to give you advice about the decisions you’re making. You’ll get lots of free advice from family members, friends, coworkers, drinking buddies, hair stylists, etc. That advice is generally worth what you pay for it. And you’re paying your hair stylist or barber to help with your hair, not give you legal advice.

You need an attorney to explain the legal process to you. Nobody is going to be able to explain the legal process to you like an attorney. It’s what we went to school for and what we do every day. If you were building a house, you wouldn’t just grab some tools and lumber and start slapping things together. You’d have a contractor involved because he or she is the expert in that area. You would decide how much that contractor (and any subcontractors) should be involved based on what you’re building, how knowledgeable you are and your comfort level dealing with things on your own. It’s the same basic idea with hiring an attorney. Your attorney should guide you through the legal process, explaining along the way what’s happening and what to expect next, while keeping your ultimate goal clearly in sight. Legal issues, even those that may seem simple at first, are usually more complicated than they appear, and the process for resolving them is often complicated.

You need an attorney to draft and make sure you understand and correctly execute legal documents. You may have the greatest agreement in the world, but if it’s not written correctly or executed correctly, it may not be worth the paper on which it’s written. My law school contracts professor consistently referred to lawyers as “wordsmiths” and I have always kept that label in mind. When we are preparing agreements, contracts, court pleadings and any other written work, our intention is to make that document as clear and unambiguous as possible, so that anyone reading it would understand exactly what it says. It’s not a skill that most people have been taught and if you execute legal documents without the advice of an attorney, you are taking a risk.

You need an attorney to advise you about possible courses of action and likely consequences. Part of your attorney’s job is to explain what he or she believes may happen if you take certain courses of action. If you do this, then the likely consequences are this, that and the other thing. We’ve seen similar circumstances before and based on our education and experience, can give you our best educated guess at the consequences so you can make informed decisions. Your attorney should help you think through things before you do them. That’s where the “counselor at law” title comes into it.

You need an attorney to tell you when you’re wrong. This may be an attorney’s most vital role and I believe it is their most overlooked role. As your attorney, I am an advisor. That doesn’t mean I’m a “Yes Man.” You don’t have to take my advice, but I’m not going to agree with your way of thinking or your plan of action just because you’re paying me. You’re paying me to give you the best advice I can and then you must decide whether to take my advice.

Basics of Prenuptial Agreements

Prenuptial agreements are not just for wealthy parents who want to make sure that Junior doesn’t lose the family fortune if he gets divorced or the wealthy elderly widow who decides to marry the pool boy. You don’t need a pile of assets or sky-high income to benefit from a prenuptial agreement. Prenuptial agreements can give both individuals peace of mind and reassurance that their relationship is based on mutual love and understanding, not economic uncertainty and fear of being apart.

There are two broad areas you can address in a prenuptial agreement. The first is economic considerations in the event of a separation or divorce. This is what most people think of when they hear the word prenup. You can specify what will be considered marital property, how that will be determined and what will happen with marital property if you separate or divorce. You can also decide in advance how property will be valued and specifically exclude certain property from distribution. For example, under the PA Divorce Code, marital property is divided in “equitable distribution” based on a list of eleven factors, with no real formula. You can specify in a prenuptial agreement that instead of using the Divorce Code’s equitable distribution factors, the value of all marital property will be divided evenly. No formula, no list of factors, just value the property and divide it in half. You can also designate certain property that will go to each person in the event of a separation or divorce.

In addition to designating how property will be divided in the event of a separation or divorce, you can agree in advance how you will handle your income and expenses. You can specify how you’ll handle your income and expenses during your marriage and provide for spousal support, alimony, financial support, whatever name you want to give it, if you separate or divorce. You can also waive any rights to those forms of support in a prenuptial agreement. If you include any provisions regarding income and expenses in your prenuptial agreement, they can be as detailed or as simple as you wish.

The second area is estate planning. Prenuptial agreements are particularly useful for couples who have been married before and are coming into this new marriage with some assets and income and possibly have children from previous relationships. When you marry, even if you don’t change your estate plan to include your new spouse, the law automatically does so. If you die before your spouse, he or she will be entitled to a certain portion of your estate regardless of whether that’s what you both had anticipated. In a prenuptial agreement, you can specify how your estate will be handled and your new spouse can waive any or all interest in your estate. Of course, you should also change your estate planning documents after your marriage to make them consistent with the terms of the prenuptial agreement.

But marriage is based on love and we should plan for it to last forever and if we think about the consequences of divorce or separation, we must not be serious and committed, right? I think that’s an oversimplification and sometimes a convenient way to avoid talking about these tough topics in advance of getting married. If you’re planning to spend the rest of your life with someone, you owe it to both of you to have these conversations. Find out what your future spouse thinks should happen with your assets and income if you end up divorced or separated. Talk about how you’re going to handle your estate planning to confirm that you’re on the same page. And if you’re on the same page, then confirm it in a written agreement. One last point – you can make the terms of prenuptial agreements change over time and even agree that after a certain time period, the agreement will no longer be in effect.