Aug 22

Marriage FAQ

Marriage is a civil contract between two individuals through which they acquire various rights and duties that have legal, social and financial implications.

There is wide variation in the laws of each state as to who can marry and what grounds, if any, are necessary to obtain a divorce. With approximately 50% of all marriages ending in divorce, the nature of marriage and of the marital relationship is undergoing constant change.

Contents

  • What are the legal requirements for marriage?
  • How old do you have to be to get married?
  • What type of ceremony is necessary for a valid marriage?
  • What is a common-law marriage?
  • Must a woman assume her husbands last name?
  • What is a prenuptial or antenuptial agreement?
  • What is necessary to make a prenuptial agreement valid?
  • What is a postnuptial agreement?
  • Can a prenuptial/postnuptial agreement decide future child support?
  • Can two people enter into an agreement about expense sharing if they are not married?
  • Do married people own each other’s property?
  • Are parties to a marriage responsible for separate debts incurred during the marriage?
  • Who is responsible for debts incurred before the marriage?
  • Does a wife have a right to her own earnings?

1. What are the legal requirements for marriage?

While there are variations from state to state, ordinarily, a couple must obtain a license from the Clerk of a municipal court or government office to get married. Close relatives may not marry each other, although in some states first cousins may marry. Parties to a marriage must have the necessary capacity to enter into a contract; that is, they must be competent, of legal age, and not under the influence of drugs or alcohol. Most states have a “waiting period” of several days between obtaining the marriage license and the actual ceremony.

2. How old do you have to be to get married?

Ordinarily, anyone aged 18 or older can enter into a valid marriage. Many states require parental consent for the marriage of younger individuals.

3. What type of ceremony is necessary for a valid marriage?

Marriages can be performed by ordained ministers, notary publics, a judge or a county clerk, depending on the laws of the state where the marriage is performed. A religious ceremony is not necessary for a valid marriage. Ordinarily, one or more witnesses must sign the marriage certificate.

4. What is a common-law marriage?

A common-law marriage is a non-ceremonial marriage that is recognized in a small minority of states. In those states which recognize common-law marriages, it is necessary for the couple to clearly represent themselves as being married to the general public, as by introducing themselves as husband and wife, sharing a last name, signing documents as husband and wife and the like. A valid common-law marriage can be ended only by death or divorce. If a couple lives together for a period of time in a state which recognizes common-law marriages, and then moves to another state which does not recognize common-law marriage, the parties are still validly married.

5. Must a woman assume her husbands last name?

A woman has the right to retain her maiden or previous last name, so long as it is not done for the purpose of fraud or deception. She must also use the name consistently.

6. What is a prenuptial or antenuptial agreement?

A prenuptial/antenuptial agreement is a contract entered into between two people who are about to get married that sets out the respective rights and obligations that will apply during the marriage, in the event of divorce and/or upon the death of either spouse. Prenuptial agreements are commonly prepared in anticipation of a second (or third, etc.) marriage where one or both parties have separate property that they do not want to be considered as marital property. Prenuptial agreements often spell out what the husband and wifes obligations will be should the marriage terminate due to death or divorce.

7. What is necessary to make a prenuptial agreement valid?

Ordinarily, and depending on state law, there must be full disclosure of each of the parties’ assets, so that each prospective spouse will know what they are giving up and what they would have been entitled to if no agreement was entered into. While it is not strictly necessary for the parties to have separate attorneys, or to be represented at all, it is strongly recommended that each prospective spouse have their own lawyer. Often, prenuptial agreements will be declared invalid by a judge because of fraud, duress or coercion; when each party is represented, the likelihood of the agreement withstanding such an attack is greatly improved.

8. What is a postnuptial agreement?

Postnuptial agreements generally cover the same issues as a premarital agreement, except that they are entered into during the marriage. Postnuptial agreements are often prepared in anticipation of divorce, in which case they may be considered to be separation agreements.

9. Can a prenuptial/postnuptial agreement decide future child support?

Yes and no. Child support issues are often the subject of postnuptial (separation) agreements and the provisions will be enforced if reasonable. Due to the possibility of a change in financial or other circumstances, child support is always subject to review by a court. The courts will apply the best interests of the child and financial ability of the parent test in enforcing and modifying marriage agreements.

10. Can two people enter into an agreement about expense sharing if they are not married?

Two people who want to live together without the benefit of marriage may enter into agreements fixing each party’s obligations during the time they are living together. Courts are reluctant to enforce such agreements where they spell out obligations to be performed after separation or termination of the living together arrangement except insofar as the agreement sets out which party owns personal property.

11. Do married people own each other’s property?

Property acquired during the course of a marriage can be held jointly or separately. Some states have community property laws that provide that property acquired during the marriage is joint property. Often, one party may come into the marriage with separate property acquired before the marriage. While such property is generally special equity property, that is, it is owned separately by the party who brought it into the marriage, it may nevertheless be considered by the court in determining such issues as child support, alimony and property division. If one spouse inherits property during the term of the marriage, the court may consider it to be special equity property, free from the claims of the other spouse. Any property put into the joint names of the parties, even if it was originally special equity property, is generally considered to be a gift of a 50% interest to the other party.

12. Are parties to a marriage responsible for separate debts incurred during the marriage?

Ordinarily, spouses are not responsible for each others debts unless they execute a document making them responsible. Credit card companies, for example, often require each spouse to sign an application where they agree to be jointly responsible for each others obligations. Some states have special statutes (laws) that make spouses responsible for each others debts for such necessities as medical expense, and expenses incurred for the benefit of the family. In community property states, spouses are generally responsible for each others debts.

13. Who is responsible for debts incurred before the marriage?

Spouses are generally not responsible for each others pre-marriage debts. In certain community property states, and under special circumstances, one may become liable for a spouses pre-marital debts.

14. Does a wife have a right to her own earnings?

A wife owns her own property and earnings; she can dispose of such property as she sees fit.