All the Legal Basics of Tying the Knot
As romantic as courtship, falling in love and proposals might be, marriage itself is basically a partnership agreement between two parties. While many couples consider the religious and emotional bonding to be as (or more) important than the legal union, hundreds of years of state and federal laws concern themselves with almost every aspect of marriage.
While the laws and requirements differ from state to state (see marriage laws by state), the legal “partnership” extends to every aspect of a married couple’s lives, including financial, emotional, legal and economic ramifications and benefits.
- Considering Marriage
- Getting Married
- After You’re Married
- Separating or Ending a Marriage
- Other Options
Because of the legal ramifications of marriage, the decision to wed is not one to be made lightly. Some couples know right away; others wait for years before tying the knot. Knowing both yourself and your potential spouse well before planning a wedding is certainly a good idea. Do you share the same values, goals, dreams, interests, thoughts about children and family? Will you have to determine how to blend two families? Many couples are now choosing to live together prior to making a decision to marry. The choice to cohabitate can carry its own legal consequences at times, specifically in relation to parenting, finances, property division and taxes. [more...]
If you are trying to decide between marriage and simply living together, you’ll want to consider the legal benefits of marriage. There are certain financial benefits triggered by a valid marriage. These are discussed at length below. Spouses also generally have a privilege against testifying against one another in court. This is a rare benefit for most couples – but a pretty important one when the opportunity arises to use it.
If you are married, the law automatically gives you certain rights to make medical decisions for your spouse if he or she is unable to make those decisions. If you are merely living together, you will need to draw up and execute additional legal documents in order to give your partner that power. Otherwise, your parents or siblings are the ones with legal say over your care. Additionally, the Family Medical Leave Act guarantees married couples the ability to take a leave of absence from work without risking their jobs in the event that a spouse becomes ill and requires care. Most employers will not allow FMLA leave for the illness of a live-in boyfriend or girlfriend. [more...]
Depending on your situation, a prenuptial agreement may be an important item to take care of before getting married. Different couples have different reasons for entering into prenuptial agreements. They’re not always just for the rich and famous. If you or your potential spouse is considering a prenuptial agreement, it is paramount that you understand the requirements for a valid prenup and the laws which govern them. Even after marriage, it is possible to create a post-marital agreement that serves a similar purpose. [more...]
Finally, if you are considering marrying a non-U.S. citizen, there are several other areas of the law you must understand. From fiancé visas and marriage visas to green cards to citizenship applications, the process of bringing a foreign spouse or fiancé to the United States can be dizzying. [more...]
While the first step of wedding planning might be finding a location, the first step of actually getting legally married is applying for a marriage license. Each state has its own requirements and procedures that govern the marriage process, ranging from blood tests to waiting periods. These requirements must be followed to avoid your marriage being declared invalid. You’ll need to find out where to go in your state and/or county to get your license as well as what information, identification and other documents you might need to provide with your application.
The next step will be a formal ceremony. It can be a religious ceremony, presided over by a minister, priest or rabbi. It can be a civil ceremony, presided over by a justice of the peace, judge or other goverment official. In some states, even a notary public can legally marry a couple.
In a few states, neither a license nor a ceremony is technically required to establish a legal marriage. Couples who live in what is known as “common-law marriage” have a union recognized as binding and legal just like one that was acknowledged through a formal ceremony. Once a common law marriage has been established, the only way to dissolve it is through a divorce or an annulment just like any other marriage.
In order to determine exactly what is required to establish a legal marriage in your state, you will need to consult the laws of your specific state . The requirements vary and it will be extremely important that you and your fiancé don’t misunderstand your state’s prerequisites. [more...]
Each state has certain restrictions in place for those applying to marry. Depending on the relative importance placed on these restrictions by the state governments, violation of these restrictions can cause a marriage to be “void” or “voidable” . For example, most states have an age limit for marriage. If one of the spouses is discovered to actually be 12 years old, the marriage is most likely going to be considered void – as if it never happened. If one of the spouses was intoxicated at the time of the marriage, he or she may be able to claim that consent to the marriage was invalid and the marriage is voidable at his or her option.
Other restrictions which can result in a void or voidable marriage include blood relation between spouses or spouses of the same sex (in most states).
Another legal restriction to marriage prohibits marriage to multiple spouses at once. The most common type of marriage historically has been monogamous marriage, a traditional union between one man and one woman. Some religions and cultures, however, continue to practice polygamy. Polygamy refers to a marriage between one man and multiple wives (or one wife and multiple husbands) while polygyny applies only to one man and several wives. All states prohibit polygamy, although certain small religious sects continue the practice quietly in their own communities. These marriages are generally not legal marriages in which a license has been procured from the state but are instead religious unions. Bigamy (marrying a new spouse while still legally married to a previous spouse) remains a crime in all 50 states. [more...]
As we mentioned above, one of the major restrictions to marriage in most states is the requirement that the license applicants must be a man and a woman. In a few states, this restriction has been overturned by the courts as unconstitutional. Currently, only a handful of states allow marriage between two people of the same sex.
There are several states that sanction same sex domestic partnerships or civil unions. The legal benefits of such unions are usually very similar to the benefits of marriage – but only at the state level.
With most traditional man/woman marriages, a legal marriage in one state is recognized by the governments of all 49 other states and the federal government. In regard to same sex unions, partnerships and marriages, however, there is a different scenario altogether. The federal government has passed the Defense of Marriage Act (DOMA) in which it is set forth that the federal goverment will not recognize those same sex legal unions for purposes of any federal marriage benefit. This includes taxes, Social Security and more. Many states have passed amendments to their state constitutions defining marriage as between a man and woman only. You can learn more about how each state treats same sex partnerships under the law in Where is Gay Marriage Legal?.
Adding to all the confusion over the legal status of same sex unions, state courts and legislatures are now faced with marriage involving transgender individuals – people born one sex who undergo hormonal therapy and genital gender reassignment surgery to become the opposite sex. Is that person a man or a woman? The state courts which have tackled this subject have differing opinions – the status of these marriages depends on the state. So far, the U.S. Supreme Court has declined to review these cases. [more...]
After You’re Married
“What’s mine is yours and what’s yours is mine.” You may have heard that before in some romantic reference to marriage. Well, it’s true. And it’s not true. Technically, after you’re married, your personal property, your real estate and your cash and investment assets are categorized into marital property and non-marital property - depending on what state you live in. In a few states, anything you owned before you were married automatically becomes joint marital property when you get married. In most states though, your pre-marital assets remain yours after your marriage unless you add your spouse to the title of those assets. Anything you acquire after the date of your marriage is usually considered marital property.
Your wedding also changes your tax status. You now file as “married”, paying taxes and taking deductions under an entirely different set of rules than before. As noted above, getting married also gives you a potential claim to your spouse’s Social Security benefits and gives you potential claim to other public benefits as a married person.
Spouses are generally eligible for insurance benefits under most employer’s group health policies – non-spouse partners are usually not eligible (unless the company has specifically chosen to include domestic partners). The flip side of this benefit is the doctrine followed by many states which requires a spouse to pay for medical treatment given to the other spouse , even absent an agreement by the non-treated spouse to be financially responsible to the doctor or hospital.
The law also gives married spouses the right to sue for injury or death of the other spouse. If your spouse is injured in an accident, you have the right in most states to sue for “loss of consortium”. This is basically a claim for damages due to the fact that your spouse is unable to perform household and spousal duties because of the injury – these duties can include housework, cooking, health care, sex and more. A spouse is one of the only persons authorized by law to sue for the wrongful death of someone else. If someone negligently or purposefully caused the death of one spouse, the surviving spouse can bring a wrongful death lawsuit against that person to recover damages for the loss.
Becoming a person’s spouse will also give you a right to make a claim against that person’s probate estate if they die without a will. Each state has “intestate succession” laws which provide for who is eligible to inherit someone’s assets after their death. The spouse of the deceased person is generally entitled to inherit the entire estate (unless there are children from another relationship in which case the spouse generally receives at least a half share of the estate). [more...]
Estate Planning After Marriage
While each state has laws which cover inheritance in the absence of a will, careful consideration of estate planning should be made at the time of any marriage. Wills, trusts, powers of attorney and health care directives (also known as “living wills”) can ease the financial and emotional impact of the passing of a spouse. If an appropriate plan is in place, there is hopefully that much less to worry about.
In the case of second or subsequent marriages or situations in which there are children by a previous relationship, estate planning can be essential. Although you may not intend it, the failure to execute an appropriate will and/or trust may result in your children receiving no portion of your estate at all. It may all go to your new spouse instead.
After all of the legal requirements for marriage have been met, one or both spouses may choose to undertake one more legal maneuver – the name change. When done immediately following a marriage, this can be a relatively simple process. You will want to make sure that you do everything necessary to change your name on your driver’s license, Social Security card, passport, professional licensing boards and more. [more...]
Separating or Ending a Marriage
As difficult as it can be to break an engagement and back out of a wedding, it is infinitely easier than ending a marriage – if only from a logistical viewpoint. A broken engagement immediately raises the question of who gets the ring. The answer to that question varies a bit from state to state. You may also have to deal with the division of some joint property and/or debt, especially if you have lived together. Unfortunately, the law won’t give you much guidance on how to do that. [more...]
Many people mistake an official separation in which one spouse moves out and files for divorce for a “legal separation”. In reality, a legal separation is a court judgment very similar to a divorce. It is not usually utilized as a mere step in the divorce process but is an end result in and of itself. Some couples choose legal separation for religious or moral reasons. They don’t believe in divorce but want some sort of formal and legal dissociation from their marriage. A legal separation can be just as difficult and messy as a divorce because all of the same issues are resolved – property, custody, support and the like. But at the end of the process, you’re still legally married. You will retain some but not all of the legal benefits of marriage discussed above. Some couples do ultimately convert a legal separation to a divorce. [more...]
The most common way to end a marriage is divorce, also known as dissolution. In contrast to annulment, courts require the parties to show that something happened after the marriage which now makes it impossible to continue to live as husband and wife. Historically, people had to show fault on the part of one spouse or the other in order for a court to grant a divorce. This fault could take many forms including adultery, insanity, substance abuse or domestic violence. In the modern-day U.S., all states now offer “no-fault” divorce which merely requires the parties to allege that the marriage is broken down beyond any possibility of repair.
Divorce accomplishes several things: the legal bond between spouses is dissolved (along with any legal benefits of that bond), marital property and debt is distributed, child custody is determined, child support is established and spousal support (also known as alimony or maintenance in some states) is established or denied. These determinations can be agreed upon by the spouses, either following personal negotiation or third-party mediation. They can also be ordered by the court after a trial in which each side presents evidence to a judge. In both situations, a judge will sign a final order of divorce, ending the marriage. [more...]
If you have gone ahead and gotten married then realized that it was a mistake, one legal option you may have is an annulment. This is a legal process similar to divorce. In an annulment, you generally have to show the court that something occurred before or at the time of your marriage which makes it void or voidable (like we discussed above). One of the most frequent grounds used to obtain an annulment is fraud. In that case, you tell the court that your spouse told you something (or kept something from you) prior to the marriage and that had you known the truth you would not have agreed to the marriage. It can be as egregious a fact as your spouse is a convicted murderer or as simple as your spouse told you that he wanted kids but really doesn’t.
When the court grants an annulment, the marriage is declared void and it legally never existed. The court will still deal with property distribution, child custody, child support and other matters generally handled in divorce actions. [more...]
Not Sure Marriage is For Me – What Else is There?
If a traditional marriage isn’t your style or isn’t legally feasible for you, your remaining options are cohabitation or living together, civil union in some states or domestic partnership in some states and municipalities. Alternatives to traditional man/woman licensed marriages include common law marriage and same sex marriage – both of which are legal in only a few states. [more...]