Marriage Legal Information

OVERVIEW

Family lawyers deal with variety of different issues within the law.  Despite dealing with bankruptcy law (see Bankruptcy Lawyers), family lawyers practice the part of the law including adoptions, name changes, marriage, prenuptial agreements, immigration, and green cards.  Because a family lawyer can be involved in so many different areas of the law, it is important to employ a family lawyer who has background experience related to your law issues.

MARRIAGE

Marriage, in most states, is a civil contract between a man and a woman.  Once married the couple’s relationship takes on a legal status.  Married couple have certain financial and personal duties during their marriage and even after they are divorced.  There are several benefits and rights that come with marriage.  They vary from state to state but they typically include the following:

  1. Tax Benefits:  you can file joint tax returns with the IRS and state authorities.  You also have the right to divide business income among family members by creating a family partnership under the federal tax code.
  2. Medical Benefits:  you and your spouse are allowed to visit each other in a hospital’s intensive care unit, including during restricted visiting hours.  Spouses also have the right to make medical decisions for each other if one becomes incapacitated.
  3. Employment Benefits:  spouses have the right to obtain medical insurance through each other’s employers and can take family leave to care for a spouse during illness.  If one spouse dies, the other can collect wages, workers compensations, and retirement benefits.  You and your spouse also have the right to take bereavement leave if a relative dies.
  4. Government Benefits:  you and your spouse have the right to receive social security, Medicare, and disability benefits for each other.  You can also receive veterans' and military benefits for your spouse, such as those for education, medical care, or special loans in addition to receiving public assistance benefits.
  5. Estate Planning Benefits:  you have the right to inherit your spouse’s property and estate.  You can also receive an exemption from both estate and gift taxes for all property left to you by your spouse.  There are certain estate trusts that can only be created by married couples.  These include QTIP trusts, QDOT trusts, and marital deduction trusts.



“WHAT ARE THE REQUIREMENTS FOR GETTING MARRIED?”

The requirements for getting married are simple but vary from state to state.  First you must obtain a marriage license and pay a minimal fee.  Some states may also require the couple to have a physical examination, be tested for venereal diseases, or show proof of vaccinations.  Both people must have the capacity to marry, meaning that they must understand what it means to be married.  If one or both person has been married before they must provide proof that the last marriage ended by divorce, annulment, or death.  In most states the couple must be at least 18 years old, but some states allow people to marry as young as 16 years old with the permission of parents or a judge.  If you are married in another country or state, your marriage will generally be recognized wherever you decide to move and live.


“WHAT WILL HAPPEN TO MY ACQUIRED ASSETS ONCE I AM MARRIED?”

A couple who is married lives under a different financial situation than a couple who is not married.  When you are married the property, income, and debt each spouse acquires is called communal property, meaning it belongs to both spouses regardless of who earned it.

Separate property refers to the assets and debts that each spouse has acquired before the marriage.  Spouses are usually allowed to keep their own separate property in the event of a divorce if they did not incorporate that property into the marriage (ie. putting your spouse’s name on the deed to your property acquired before marriage).  If you are concerned about keeping your separate property you should consult a lawyer about writing a prenuptial agreement before the marriage.


“I’M THINKING ABOUT GETTING MARRIED, DO I NEED A PRENUPTIAL AGREEMENT?”

A prenuptial agreement, commonly referred to as a prenup, is a contract agreed to by two people before they get married.  Basically it is a list of the assets and debts each person owns before the marriage and how those assets and debts will be distributed after the marriage is over.  Reasons for having a prenup are:

  1. A couple has significant assets or family wealth that they would like to keep in the event their marriage does not last.
  2. A couple has kids from a different marriage and would like to ensure that their personal property and assets are passed to their own children when they die.
  3. To avoid a lengthy and costly future divorce.
  4. To clarify the financial rights and responsibilities for each spouse during the marriage.
  5. To protect each spouse from the other’s debts.


“WHAT HAPPENS IF I DON’T HAVE A PRENUP BEFORE I GET MARRIED?”

If you and your spouse do not sign a prenup before you get married, then both spouses have a right to share in the ownership of all property, assets, and debts acquired during the marriage.  In addition, both spouses have the right to share in the management and control of communal property.  This includes selling and even giving away that property.

 

“HOW DO I WRITE A PRENUP THAT WILL BE VALID IN COURT?”

You and your spouse can write your own prenup and then have it reviewed by a family lawyer.  A lawyer will ensure that what you have written will be validated by a court of law.  When you write your prenup make sure that it is written clearly and in easily understood language.

 

PAYMENT

Depending on the type of service your family/marriage lawyer provides, they may charge a flat fee or they may charge an hourly fee.  It is important when you first speak with a family/marriage lawyer to find out how much they charge and by what method they calculate their fee.  Find out if the lawyer requires an initial retainer.  This is money paid to your lawyer up front in case you can’t pay the hourly fee later on.  If they do require a retainer, how much is it?  Keep in mind that complex family matters will cost more money than simple ones.  You should always inform your lawyer you want to keep your costs to a reasonable minimum and you would like them to help you do so.