LOS ANGELES: The gay prenup: A look at Ellen Degeneres and Portia de Rossi's situation

ellenYou may have caught Ellen Degeneres and Portia de Rossi on the Oprah Winfrey Show yesterday. It was their first joint TV interview, as lesbian wives, since the women tied the knot in California in August 2008. Notwithstanding that Prop 8 subsequently outlawed marriage between same sex couples in the state of California, both Ellen and Portia continue to refer to themselves as each other’s “spouse.”
Be that as it may, the legal status of their union is unclear at this time and the question being raised, amongst others, is whether they are even legally married at this point (i.e. whether they were grandfathered in since their marriage was pre-prop 8) or whether their marriage certificate is just a worthless piece of paper that does not legally bind the two whether in marriage or divorce.
It begs the question whether, assuming the marriage was nullified by Prop 8, whether a prenup between the parties (assuming they had a prenup)  is similarly null and void or whether it is enforceable as some sort of domestic partnership arrangement/parties’ intent or what?
Assuming it is enforceable, would there then be a difference between a gay prenup as compared to a regular prenup?  The only difference that is discernible at first blush, is that the spouses are of the same gender but as to the terms of the prenup itself, it is conceivable that the agreement would mirror the language of standard premarital agreements. The sticky issue in it might the issue of children. In other words, gays can’t have biological children, obviously. Well, not with each other. So children will likely be a sticking point because only one of them, if any, will be the biological parent. So the prenup, if smartly drafted would have to address the issue of custody, visitation and support, conceivably, of any children that are born during the marriage. Although, most states would recognize children born during a marriage as “children of the marriage” meaning that, say in a heterosexual marriage, there is a presumption of paternity of any issue born during the marriage. But it is rebuttable, of course.
Similarly, there is likely to be a presumption of maternity and paternity in gay marriages even without a prenup. Still, parties can’t be too careful. Because the traditional rule is that if the non-biological parent did not adopt the child, he or she has no “parental rights” once the parties separate.
Other than children, it is hard to imagine any issues unique to the gay prenup. Except perhaps, the issue of spousal support. Typically, (but not always), the husband is the one who pays spousal support to his wife. The idea being that he usually is the main bread winner and she is the home maker and stay at home parent. Plus, for whatever the reasons, men still out-earn women in our society so usually the husband is the higher wage earner as well. But in same sex unions, how does that work? As far as quantifying contributions as a home maker and things like that and who would pay spousal support and on what basis using what set of rules? Surely, it can’t be that difficult to come up with a benchmark but it is certainly a novel concept when one really thinks about it of spousal support and alimony in same sex unions. These should make for some interesting trials.
As for Ellen and Portia. It was interesting to hear Ellen tell Oprah:

“This is the smartest, kindest, most wonderful woman that you’ll ever, ever know,” DeGeneres announced on the show as she introduced her wife…..”Anybody who’s married knows there is a difference,” DeGeneres said on “Oprah.” “It feels like you’re home. There’s an anchor, there’s a safety. I’m going to be with her until the day I die and I know that.” New York Daily News

It is hard not to be a cynic when you hear celebrities say things like that. And then, as a person whose work is focused on divorce, you cringe a bit and wonder how long before she eats those words? But then, you hope for the best for her and Portia to really be the exception to this marriage rule, but barring that, you just keep your fingers crossed that they executed an air-tight, enforceable, valid prenup.
Time will tell, won’t it? Stay tuned.
Read more: http://www.nydailynews.com/gossip/2009/11/10/2009-11-10_ellen_degeneres_on_oprah_winfrey_show_im_going_to_be_with_portia_de_rossi_until_.html#ixzz0WVYOkhR7