wedding

Hiring a Lawyer Before Marrying

Many people like to think about love and marriage as intertwined, and believe that so long as the love is there, the marriage will follow naturally. However, this is not always the case. While the more romantic notions of marriage might be tied to love, marriage is also a legal institution, which means that it comes with a whole host of complicated issues that must be addressed. There are many legal factors involved in a wedding that may require the attentions of a lawyer.

Why we’re asking:

Nobody likes to think about the legal realities of getting married–it’s much easier to focus on the warm and fuzzy aspects. However, ignoring the legal side doesn’t mean it will go away. There are many different problems that can crop up when two people become legally joined, and it is important to consider how your marriage will affect your legal status before you go through with it. Consulting with a lawyer may not seem romantic, but as our legal professionals know, it’s definitely the smart thing to do.

Professionals, share your thoughts below:

Why should you consult with a lawyer before getting married?

What issues most often come up in pre-nuptial negotiations?

How does getting married affect child custody? How about tax status? Citizenship?

Have you ever had a client decide not to get married after looking at the legal realities of it?

What are the most prominent legal benefits of marriage? How about the drawbacks?

When is getting legally married a bad decision? What alternatives to legal marriage are there?

Before you can ride off into the sunset, consulting with a lawyer is probably a good decision. After all, nobody wants their happily ever after to turn into a legal nightmare.

Please post your answers in the comment field below!

  • Ronald Lieberman 01/20/14

    Love is not always blind, but relationships do deteriorate. If you believe that you have significant assets worth protecting in the event of a divorce, then by all means you need to speak to an attorney about protecting them. That action is not a knock on your soon-to-be spouse, but instead is a prudent, thorough way of preventing future disputes.

  • Dara M. Strickland 01/20/14

    Getting married is, just as it has been for thousands of years, a business agreement. Instead of choosing someone best suited to help run a subsistence farm and produce more workers as we did in the Bronze Age, we now come with cars already paid off in cash and student loan debt. It doesn’t change the equation: wrong partner = failed business. If you wouldn’t start a business with someone without an operating agreement that detailed what would happen if you could no longer run it together, why would you start a marriage without one?

    Prenuptial agreements are vastly over-represented in American popular culture – less than 3% of all couples have one. I frequently tell couples who are interested in prenuptial agreements that sitting down and talking about their property and debt together in the process of writing their agreement will save them the first five fights of their marriage.

    The biggest change when a couple gets married in most states will be the presumption of marital or community property, whether the couple understands what that means or not. This is the biggest problem for couples who own property that they mean to be separate, or partially separate. One of the things I see most is a couple who purchased a house together before they were married with one partner contributing a significant down payment from an inheritance, family gift, or property owned separately before the marriage. While their expectations about what would happen to the down payment amount if they break up may be in line when they get married, time has a way of changing such understandings. Many people honestly just don’t remember if they agreed or what they agreed to 10 years before. Just facing and writing down expectations for property division can help the process of blending finances as well as families.

    Getting married has little effect on child custody, though in a contested case, getting married to a committed partner versus living together without marriage may show more stability; A hasty marriage can cut the opposite way and show poor long-term decision making. For favorable legal statuses, marriage usually represents a key to a door that isn’t open yet – being legally married is the only way to access the rights but not many flow automatically on saying “I do.” Marriage has many, many state and Federal benefits that are available for the asking immediately (like the estate and gift tax exclusions and spousal status for immigration) and some that take time to accrue, but only accrue while married (like the ability to claim the history of a spouse’s earnings for the purposes of Social Security). People who are not or cannot be legally married don’t have the necessary key to access those rights. Thousands of committed couples in my state want the benefits of marriage but cannot have them because they are male and male or female and female. They sit by and watch while the Kardashians open and close the doors to those rights like they’re trying to make a breeze.

    Of all the rights that married couples get that unmarried couples do not, I’d say the most important one is not a codified legal right (at least not in Missouri, where I practice) but a social right: the right to be treated as the person who is best able to make decisions when your partner cannot communicate because of injury, illness, or death. Without a healthcare power of attorney, medical professionals will turn to a spouse for decisions without much question, but may ignore an unmarried partner in favor of a blood relation. No mortuary would question the ability of a 25 year old widower to plan his wife’s funeral or take possession of her ashes; things may be entirely different for another man, together with his partner for longer than the young widower has been alive, but never able to marry.

    Legal alternatives to marriage largely deal with clearly outlining those social rights (powers of attorney, wills and trusts, declarations of right of sepulchre), as well as the ownership and future division of property and sometimes involve visitation and support of existing or future children. Something that’s also been useful and popular in my practice is a contract, modeled on many of the same terms I use for my prenuptial agreement, that addresses property issues if an unmarried couple breaks up. This is necessary in Missouri because the family court cannot divide any property for a couple unless they were married and a partition action, the remedy available for unmarried people, only deals with real estate and is an almost guaranteed way for both parties to lose money on the sale of a house.

    One of the most unusual challenges of practicing in a state that will not allow same-sex marriages from other states to be legally recognized for any reason is that it’s actually impossible for those couples to get divorced here. That can leave them in a real bind, since most of the states that do allow dissolution of same-sex marriages have residency requirements of at least three months, many for an entire year.

    Is getting married a bad idea? To the wrong person, always. Unfortunately, the most reliable way to find out if your partner is the wrong person to marry is to tie the knot and be proven right over the course of several years.

  • David Wilkinson 01/21/14

    The most common issues that come up when our firm handles prenups include:
    Limitations or waivers of spousal support
    Confirmation and/or characterization of separate property
    Agreements re: tax filing status
    Reimbursements of separate property for purchases of joint property
    Characterization of income that each party receives during marriage.

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