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Marriage FAQ

When deciding to get married, there are endless questions and not just those relating to the wedding ceremony. While the right flower arrangements are essential, before you get married you'll also want to learn more about what impact the legal status of marriage will have on you and your future spouse. You're taking the right steps by asking these questions now so that you face fewer surprises once you say "I do." A list of the more FAQ about marriage are below as well as information about additional resources.

Q: What is the legal definition of marriage?

A: Marriage is usually defined as a contract entered into by two people demonstrating their intent to be spouses in the eyes of the law.

Q: My partner and I will be getting married in a few months. What will we need to do in order to be considered legally married?

A: Marriage requirements vary from state to state, but usually include a license, a waiting period, blood tests, minimum ages, a ceremony officiated by a clergyperson or an officer of the court, and witnesses.

Q: Who can perform the marriage ceremony?

A: In most states, a marriage ceremony can be performed by:

  • A judge, magistrate, justice of the peace, or county clerk;
  • A mayor (or deputy mayor); or
  • A religious clergy (minister, rabbi, etc.).

Q: I'm getting married soon, and I want to make sure that my savings account remains my own separate property. How can I do that?

A: You should continue to keep all separate property separate throughout the marriage if you are concerned about keeping it as your personal asset upon your death or divorce. Generally, this means you should not "commingle" property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult -- if not impossible -- to legally determine which is which.

Q: My future spouse and I want to create a prenuptial agreement. How should we go about doing so?

A: Before entering into a prenuptial agreement, both parties must fully disclose their assets, income, and liabilities to the other, and they must enter into the agreement in "good faith," meaning that neither person intends to misrepresent the facts or take advantage of the other. In order to ensure that the premarital agreement will be enforced, it is advisable for both future spouses to be represented by separate attorneys, who can advise them on their rights and responsibilities. In fact, some states' laws require that each party be represented by a separate attorney in order for a premarital agreement to be valid.

Q: What is "common law marriage"?

A: A common law marriage is marriage in the eyes of the law, when no official marriage has taken place. In a common law marriage, a couple is considered legally married, despite not having a marriage license, a ceremony, or a marriage certificate, if they meet specific requirements listed in the laws where they live. Usually, the couple must live together and conduct themselves as spouses before they will be considered in a common law marriage.

Q: My spouse and I have been married for almost 20 years, but I've owned my business for more than 25 years. I know that the income from the business is "community" property, but is the business itself considered my separate property?

A: Not necessarily. Don't assume that a business you owned prior to marriage remains separate property after marriage. It may become subject to community property laws. If your business increased in value during the marriage due in part to your spouse's contributions, your spouse may be entitled to a share of the increase in value upon divorce or your death. Such contributions can be obvious -- your spouse provided bookkeeping services to the business -- but they can also be more subtle -- i.e. your spouse took care of the home and children so you could focus on running the business.

Q: Should my spouse and I file a joint tax return?

A: Ordinarily, filing a joint return will give you a greater tax advantage. But in some cases, your combined income tax on separate returns may be less than it would be on a joint return. Determine your tax both on a joint return and on separate returns under the community property laws of your state. You can then compare the tax figured under both methods and use the one that results in less tax. Keep in mind that if you file separate returns you and your spouse must each report half of your combined community income and deductions in addition to your separate income and deductions.

If You Still Have Questions After This Marriage FAQ? Seek Legal Help

As you can see there are important frequently asked questions about marriage, but there are also questions that people may not think about until after the fact. That's where experienced family law attorneys can help as chances are they've seen most issues that can arise after the wedding bells toll. Reach out to a family law attorney in your area today and you can receive legal advice based on your specific situation.

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