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Marriage FAQ

When deciding to get married, there can be endless questions. It's never just about the wedding ceremony itself. It's true — the right flower arrangements are essential. But before you get married, you'll also want to learn more about the legal status of marriage. It can have significant impacts on you and your future spouse. You're taking the right steps by asking these questions now because doing so could mean that you face fewer surprises once you say, "I do."

Read on for a review of facts about marriage, as well as a variety of additional resources on it.

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, 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 member of a religious clergy, such as a minister or a rabbi.

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 speaking, this means you should not "commingle" property you owned prior to marriage with the property you and your spouse acquire during the marriage.

In cases of "commingling," it may become difficult or even impossible to legally determine whether the property is marital or shared. Commingling of property takes place when, for example, you deposit money of your own in an account that you share with your spouse. This is particularly the case when you earned or otherwise obtained that money prior to the marriage.

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. They must also enter into the agreement in "good faith," which means 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's a good idea for both future spouses to use separate attorneys. In fact, some state 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 a marriage in the eyes of the law, even 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. Your sole ownership of that business may be affected by 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, such as your spouse providing bookkeeping services to the business. But they can also be more subtle, such as your spouse taking 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. You can then compare the tax figured under both methods and use the one that results in less tax. Keep in mind that in cases where married couples file taxes separately, the Internal Revenue Service requires that they both use the same deduction method -- itemized or standard.

Still Have Questions About Marriage and the Law? Seek Legal Help!

There are many important questions to ask about marriage. When it comes to how the legal status of marriage can affect you and your spouse, it can get confusing. That's where experienced family law attorneys can help. Chances are they've dealt with most of your issues and questions already. Consider reaching out to a family law attorney in your area today.

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