Premarital Agreements

Why Premarital Agreements are so Important?

As you contemplate marriage to your beloved, talk of a prenup may appear unpleasant and unneeded. But, in my experience, that is a misconception. By removing the specter of financial mistrust, with upfront and honest communication, a prenup can alleviate any lurking fears or concerns of either party, and set the stage for a marriage based on mutual love and commitment. Most prenups can be prepared for $500.

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Premarital Agreements
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Marriage Law Overview

Marriage represents a lifetime commitment between two partners. While this typically involves mutual romantic interest, marriage is also a legal contract that confers special rights and responsibilities to the parties involved. For instance, married partners are not bound by hospital visitation restrictions and are eligible for certain survivor benefits when the other one dies. Additionally, the possessions of married partners are shared (and divided as such when the marriage ends). This section covers the basics of marriage law, including marriage license requirements, state-specific marriage license information, the meaning of marital property, and more.

Marriage laws are determined at the state level, although federal courts have intervened throughout history to ensure equal protection under the law. For example, the U.S. Supreme Court ruled in 2015 that states cannot restrict the institution of marriage to just heterosexual couples under the Equal Protection clause of the 14th Amendment to the Constitution.

State marriage laws determine the age at which an individual can get married with and without parental consent; whether blood tests are required; how marital property is divided in the event of a divorce; and other considerations. State laws also have criteria for what constitutes an invalid marriage and thus eligible for an annulment.

State requirements for obtaining a marriage license typically include waiting periods, either before or after receiving the license, before the actual ceremony. For instance, South Carolina has just a one-day waiting period to receive a license after applying, but Wisconsin requires couples to wait six days. Texans must wait at least three days after receiving a marriage license before getting legally married. These waiting periods may seem inconvenient, but they are intended to ensure that the individuals planning to get married are really ready to make this commitment.

Also, marriage licenses typically expire after a certain amount of time has passed, ranging from 10 days (Oklahoma) to one year (Arizona). In some jurisdictions, including the District of Columbia, marriage licenses never expire.

In order to qualify for a marriage license, you and your partner (in most cases) will both have to go to the county clerk’s office near you and pay a fee in addition to filing an application. You will be asked for photo identification (usually a driver’s license), proof of residence, and a birth certificate. If you have been divorced or widowed, you will have to bring a copy of the divorce decree or death certificate. Virtually all states have ended the requirement for a blood test, which was once a common method for preventing incestual marriages.

Partners can get married at the courthouse in most cases, but also have the option of holding a separate ceremony presided over by someone legally qualified to do so (such as an ordained minister).

Marriage Law

Maybe you’re thinking about marriage and you’re curious about how prenuptial agreements work. Or you’re planning a wedding and wondering which states allow same-sex marriage. Or maybe you’re back from your honeymoon and trying to figure out if your health benefits cover your new spouse. It seems like there are a million legal questions that can cloud your marital bliss. But whatever your concern may be, FindLaw’s Marriage Law section has an array of resources covering all of your marriage questions.

In this section, you’ll find helpful marriage law information and practical tips on a variety of issues related to marriage — such as marriage rights, marriage benefits, prenuptial agreements, community property, foreign spouses, common law marriage, state marriage license requirements, and name changes after marriage. This section also includes a helpful “getting married” checklist and other resources to help guide you through the marriage process and ensure your marriage is legal.

There are very few federal marriage laws, so it’s left to the states to determine their own requirements for marriage eligibility, applications, and licenses. There are restrictions on age, mostly for those under 18 who will need parental permission to get married. You may also be required to provide extensive personal information in order to apply for a marriage license, which are normally issued by county courts where you reside or where the marriage will take place. In addition, the licenses themselves have fees, waiting periods, and are valid for a limited time only. All of these regulations will depend on either where you reside or where you decide to get married.
As of now, states also have the right to determine who can marry. The law regarding same-sex marriages is currently in flux, with many courts overturning bans on same-sex marriage and more states passing laws providing for same-sex unions. The law on common law marriages is also changing, with the majority of states no longer recognizing it as a legal union. These laws are constantly evolving, so the more up-to-date research you can do, the better.
You don’t have to be worrying about a potential divorce to be concerned about the implications marriage will have with respect to money, property, and debt. In most states, getting married means that your spouse’s income and debt now become yours, and vice versa. There are also issues that can arise with banking, finances, and investments. In the unfortunate event of a divorce, some states treat marital property differently. In community property states, any property obtained during the marriage must be split evenly, while in states that don’t recognize community property, the split could be up to parties or even the courts.
Not everyone needs a prenuptial agreement, and many people can get married without hiring a lawyer. However, if you’re curious about pre-marriage agreements, need questions answered about the marriage requirements in your state, or have concerns regarding legal issues that have arisen since your wedding day, an experienced family law attorney can help.

Marriage Money and Property

Marriage carries certain legal implications with respect to property, money, and debt. Becoming legally married in the eyes of your state means your spouse’s income (and debt) are now yours, as well. If one of you runs up a huge credit card bill, you both now are on the hook when the bill comes. The following resources include information about marital (or communal) property and debt, how property is treated in a divorce, how marriage affects taxes and related topics. To learn more about marital property and the legal concept of “community property,” visit the Divorce & Property section of FindLaw’s Family Law Center.

The possessions acquired by partners when they get married are generally shared, although each spouse may claim certain items as a practical matter. This is referred to as “marital property,” which really only matters when the partners get divorced. Marital property does not include property that was acquired by either spouse prior to the marriage, nor does it include inheritances, personal gifts, and other limited types of property.

That which is considered marital property, however, is subject to division upon divorce. For those who live in community property states, marital property generally is divided right down the middle. But more states use an equitable division model in which the needs and assets of each party are carefully considered.

While everyone enters into marriage with the belief that it will last, roughly half of all marriages end in divorce. Therefore, it makes sense to take certain precautions with respect to property. For instance, any property acquired with nonmarital funds (such as an inheritance) is considered separate property, as are any personal injury lawsuit awards. Any separate property that is “commingled” with marital property will be difficult to separate in the event of a divorce.

An otherwise close and loving relationship can quickly come undone under financial stress, which tends to be the most common cause of marital discord. While it’s hardly romantic, discussing financial matters before and during your marriage is an important undertaking. And even if financial problems and disagreements lead to divorce, the divorce itself often presents much larger problems with respect to finances.

One of the most important things couples should do when they get married is to set clear financial expectations. For instance, you should decide what is essential in terms of expenditures; whether to use a joint checking or savings account; who earns more and what financial contributions are expected of each party; and who actually pays the bills and balances the checkbook.

Couples also need to decide what their future plans may be, and what it will take to afford this future. For instance, it costs a lot to raise children — you’ll have to consider the cost of child care, medical and orthodontic care, and the cost of a university education. Another consideration is your retirement goals and whether you will have enough money tucked away to meet those goals.

Every state has some form of health care directive for residents to express medical care preferences and instructions. Keep in mind that states may use different terms and have different requirements and procedures. For example, one state might use the term “living will,” while another state uses the term “advance health care directive.” Also, one state may require medical personnel to obey living will instructions, while another state merely provides medical personnel with legal immunity if they choose to obey will instructions. If you have questions about your state’s health care directive laws, it’s a good idea to speak with an attorney.

Depending on the state, a person can provide treatment instructions concerning blood transfusions, dialysis, use of a respirator, and the administration of life-sustaining drugs and intravenous fluids. It goes without saying that these decisions should be carefully considered, with family members and friends consulted. If you begin thinking about your living will early on, you’ll give yourself time to plan carefully and to consult with your loved ones.

An attorney can answer any questions you have about living wills, and he or she can help you to create a will that states your end-of-life and other medical decisions clearly. This section provides a link for consulting with an experienced estate planning attorney in your area.

Prenuptial Agreements

Premarital agreements (also called prenuptial agreements or “prenups”) are a common legal step taken before marriage. A prenup establishes the property and financial rights of each spouse in the event of a divorce. So while no one is thinking about a divorce when they get married, about one half of all marriages in America end up in divorce proceedings. So it’s often prudent to at least consider a prenuptial agreement. Prenups are often used to protect the assets of wealthy spouses but also can protect family businesses and serve other important functions. Learn about your state’s legal requirements for a prenuptial agreement and whether it’s right for you.

There are several reasons why one party (or even both parties) may want to sign a valid prenuptial agreement prior to getting married. Generally, prenups protect assets that may otherwise be subject to marital property laws. Specifically, these documents may be used to:

  • Protect one party from taking on the debts of the other
  • Protect specified assets of one party
  • Determine the manner in which property is passed on after death
  • Simplify property division in the event of divorce
  • Clarify financial responsibilities of the parties

Entering into a prenuptial agreement should never be taken lightly, particularly since the very mention of a prenup suggests the possibility that the marriage may end at some point. Discussion of a prenuptial agreement also can create stress in a relationship. Therefore, deciding whether to implement certain financial conditions and designations of separate property while also planning nuptials is a personal decision. It helps to understand the pros and cons of signing such an agreement.

  • Pros
    Support your estate plan without future court involvement
    Make certain financial agreements with your spouse official
    Protect the family business and its assets
    Fewer property conflicts during a divorce
    Avoid shared debt liability
  • Cons
    Can create distrust and dull the relationship
    Certain elements of the prenup may already be addressed by state law
    Cannot address child support or child custody issues in a prenup
    A judge may rule parts of the prenup unenforceable, depending on the relevant facts in the case
    Non-monetary matters, such as chores and tasks, cannot be addressed in a prenup
A prenuptial agreement may be considered invalid under a number of different conditions and scenarios. First of all, a prenup must be written and signed by both parties and properly executed. Beyond that, a prenup that was signed under duress or not even read prior to signing (as part of a package of documents requesting signatures, for instance), then it may not be considered valid. Other reasons a state may not recognize a prenuptial agreement include lack of independent counsel (for each spouse), false information, and unconscionability.