| MARRIAGE
Requirements of Getting Married
Q. Legally, what is marriage?
A. Most states define marriage as a civil contract between a
man and woman to become
husband and wife.
The moment a man and woman marry, their relationship acquires a legal
status.
Married couples have financial and personal duties during marriage and
after separation
or divorce. State laws determine the extent of these duties. As the United
States Supreme
Court said about marriage in 1888: "The relation once formed, the
law steps in and holds
the parties to various obligations and liabilities."
Of course, marriage is a private bond between two people, but it is also
an
important social institution.
Today, society also recognizes marriage as:
• way to express commitment, strengthen intimate bonds, and provide
mutual
emotional support;
• a (comparatively) stable structure within which to raise children;
• a financial partnership in which spouses may choose from a variety
of roles. Both
spouses may work to support the family, the husband may support the wife,
or the
wife may support the husband.
As our society becomes more complex, there is no longer a short answer
to the
question "What is marriage?" Definitions and opinions of the
proper functions of
marriage continue to change. The women's rights movement and gay rights
movement
have changed some people's ideas of marriage and created new forms of
relationships,
including Adomestic partnerships and Ácivil unions for same-sex
couples. Marriage will
remain, but it will also continue to evolve.
Q. What are the legal requirements for getting married?
A. The requirements are simple, although they vary from state
to state. In general, a man
and woman wishing to marry must obtain a license in the state in which
they wish to be
married, usually from a county clerk or a clerk of court. The fee usually
is low.
Some states require the man and woman to have blood tests for venereal
disease--
but not for AIDS--before the license is issued. Some states do not require
this test if the
two have already been living as husband and wife. If the test shows that
a would-be
spouse has a venereal disease, certain states may not issue a license.
Other states will
allow the marriage if the couple knows the disease is present.
In some states a couple must show proof of immunity or vaccination for
certain
diseases. A few states demand a general physical examination.
If one or both of the parties have been married before, the earlier marriage
must
have been ended by death, divorce, or annulment.
Parties who wish to marry must have the "capacity" to do so.
That means the man
and woman must understand that they are being married and what it means
to be married.
If because of drunkenness, mental illness, or some other problem, one
of parties lacks
"capacity," the marriage will not be valid.
Close blood relatives cannot marry, although in some states, first cousins
can
marry. Of those states that allow first cousins to marry, a few states
also require that one
of the cousins no longer be able to conceive children.
Most, but not all, states require a waiting period, generally one to five
days,
between the time the license is issued and the time of the marriage ceremony.
Q. At what age may people marry?
A. In most states, a man or woman may marry at age eighteen without
parental consent.
Most states also allow persons age sixteen and seventeen to marry with
consent of their
parents or a judge.
Q. When does a couple truly become married?
A. Most states consider a couple to be married when the ceremony
ends. In a few states,
lack of sexual relations may allow a spouse to have the marriage annulled
(see below). In
most states, however, non-consummation does not affect the validity of
the marriage. In
all states, the proper official must record the marriage license. Recording
the marriage
license acts as proof that the marriage happened.
Q. Is a particular type of marriage ceremony required?
A. A marriage ceremony may be religious or civil. The person
or persons conducting the
ceremony should indicate that the man and woman agree to be married. A
religious
ceremony should be conducted under the customs of the religion, or, in
the case of a
Native American group, of the tribe. Most states require one or two witnesses
to sign the
marriage certificate.
Q. Who may conduct a marriage ceremony?
A. Civil ceremonies usually are conducted by judges. In some
states, county clerks or
other government officials may conduct civil ceremonies. Religious ceremonies
normally
are conducted by religious officials, such as ministers, priests, or rabbis.
Native American
ceremonies may be presided over by a tribal chief or other designated
official. Contrary to
some popular legends, no state authorizes ship captains to perform marriages.
Q. Are common-law marriages allowed?
A. In most states, no. In times past, particularly the frontier
days, it was common for
states to consider a woman and man to be married if they lived together
for a certain
length of time, had sexual intercourse, and held themselves out as husband
and wife, even
though they never went through a marriage ceremony. Today, only about
one-fourth of
the states recognize common-law marriages. In order for there to be a
legal common-law
marriage, the couple must clearly represent themselves to others as being
husband and
wife; merely living together is not enough to create a marriage.
In states that recognize a common-law marriage, the partners have the
same rights
and duties as if there had been a ceremonial marriage. Most other states
will accept as
valid a common-law marriage that began in a state that recognizes common-law
marriage.
A legal common-law marriage may end only with a formal divorce.
Q. Does the law recognize same-sex marriages?
A. No. As of the year 2000, no state has passed a law recognizing
homosexual
marriages per se. If two members of the same sex were to go through a
marriage
ceremony, the courts would not consider the marriage to be valid, and,
in the event the
parties split up, they could not seek a legal divorce. The Vermont legislature
has enacted
a statute that allows same-sex couples to form civil unions to give same-sex
couples
the same benefits and protections as opposite-sex couples who enter into
marriages. The
law is being challenged in the courts by persons opposed to same-sex unions.
The
Vermont Supreme Court has already ruled, however that same-sex couples
should have
the same rights as opposite-sex couples.
A decision by the Hawaii Supreme Court in the 1990s made it appear that
Hawaii
would become the first state to authorize same-sex marriages. The state,
however,
amended its constitution to preclude such marriages.
Q. What is a domestic partnership?
A. Some cities have passed laws providing for "domestic
partnerships" which can be used
by homosexual couples and by heterosexual couples who are living together
without
being married. To become domestic partners, the couple usually must register
their
relationship at a government office and declare that they are in a "committed"
relationship. Domestic partnerships provide some--but not all--of the
legal benefits of
marriage. Some of the common benefits are the right to coverage on a family
health
insurance policy, the right to family leave to take care of a sick partner
(to the same extent
a person would be able to use family leave to care for a sick spouse),
bereavement leave,
visiting rights to hospitals and jails, and rent control benefits (to
the same extent a spouse
would retain reduced rent if his or her partner died).
Q. Does a woman's last name change when she gets married?
A. Only if she wants to change it. In the past, some people assumed
that a woman would
change her last name to her husband's name when she married. Now society
recognizes a
woman's right to take her husband's name, keep her original name, or use
both names.
The general rule is that if a woman uses a certain name consistently and
honestly, then
that is her true name. See the next page for a detailed discussion of
how names may be
changed.
Invalid Marriages
Q. What if someone thinks he or she has a genuine marriage
but it turns out to be
invalid?
A. Sometimes people who live as a married couple learn that their
marriage is not legal.
For example, one supposed spouse may have kept a prior marriage secret,
or both may
have thought incorrectly that an earlier marriage had ended in divorce
or the death of a
spouse. Or a marriage may be invalid because it is between close relatives,
underage
persons, or people incapable of entering into the marriage contract because
of mental
incompetence.
In some states the putative (supposed) spouse doctrine offers some protection
if the
parties went through a ceremonial marriage. A putative spouse may be entitled
to the
benefits and rights of a legal spouse for as long as she or he reasonably
believes the
marriage to be valid. In states that do not accept the putative-spouse
doctrine, people who
mistakenly believe they are married usually have the same status as unmarried
couples
who live together.
Sometimes people discover that their marriage is invalid only when filing
for
divorce. After a long union that a couple believed was a valid marriage,
a court may
refuse to declare the marriage invalid and require a divorce to end the
marriage.
Q. What other legal rules affect invalid marriages?
A. Sometimes the law treats an invalid marriage as valid if one
person tricked the other
into thinking they are married. If so, a court might not allow the deceiver
to declare the
marriage invalid. In legal terms, the court "estops" the deceiver
from denying that the
marriage exists. In addition, a court may find that the doctrine of laches
(long delay)
prevents even the innocent party, who originally did not know about the
invalid marriage,
from having the marriage declared invalid if he or she did nothing for
a long time after
learning that the marriage was not valid.
Premarital Agreements
Q. What is a premarital agreement?
A. A premarital or antenuptial agreement is a contract entered
into by a man and woman
before they marry. The agreement usually describes what each party's rights
will be if they
divorce or when one of them dies. Premarital agreements most commonly
deal with
issues of property and support--who is entitled to what property and how
much support, if
any, will be paid in the event of divorce.
Q. Why do people enter into premarital agreements?
A. Sometimes persons intending to marry use premarital agreements
as a way of
clarifying their expectations and rights for the future. Another reason
for making such
agreements is to try to avoid uncertainties about how a divorce court
might divide
property and decide spousal support if the marriage fails. A man or woman
who wants a
future spouse to enter into a premarital agreement often has something
he or she wants to
protect, usually money. One or both partners may want to avoid the risk
of a major loss of
assets, income, or a family business in the event of a divorce. For people
marrying for a
second or third time, there might be a desire to make sure that a majority
of assets or
personal belongings are passed on to the children or grandchildren of
prior marriages
rather than a current spouse.
Q. What does the less wealthy spouse give up by signing a premarital
agreement?
A. The less wealthy spouse is agreeing to have his or her property
rights determined by
the agreement rather than by the usual rules of law that a court would
apply on divorce or
the death of the wealthier spouse. As will be discussed later, courts
have certain rules for
dividing property when a couple divorce. In some states (such as California),
courts
automatically divide equally the property acquired by the husband and
wife during the
marriage. In more states, courts divide property as the court considers
fair, and the result
is less predictable; the split could be fifty-fifty or something else.
If one spouse dies,
courts normally follow the instructions of that person's will, but the
surviving spouse
usually is entitled to one-third to one-half of the estate regardless
of what the deceased
spouse's will says. If the husband and wife have signed a valid premarital
agreement, that
agreement will supersede the usual laws for dividing property and income
upon divorce
or death. In many cases, the less wealthy spouse will receive less under
the premarital
agreement than he or she would receive under the usual laws of divorce
or wills.
Q. Why would the less wealthy spouse sign a premarital agreement
if he or she
would receive less under the agreement than under other laws?
A. The answer to that question depends on the individual. Some
people prefer to control
their fiscal relationship rather than to leave it to state regulation.
They may want to avoid
uncertainty about what a court might decide if the marriage ends in divorce.
For some, the
answer may be "love conquers all"--the less wealthy person may
just want to marry the
other party and not care much about the financial details. For others,
the agreement may
provide ample security, even if it is not as generous as a judge might
be. Still others may
not like the agreement, but they are willing to take their chances and
hope the relationship
and the financial arrangements work out for the best.
Q. What is necessary to make a valid premarital agreement?
A. Laws vary from state to state. In general, the agreements
must be in writing and signed
by the parties. In most states, the parties (particularly the wealthier
one) must disclose
their income and assets to each other. This way the parties will know
more about what
they might be giving up. In some states, it may be possible to waive a
full disclosure of
income and assets, but the waiver should be done knowingly and it is best
if each party
has a general idea of the other's net worth.
The agreements also must not be the result of fraud or duress. An agreement
is
likely to be invalid on the basis of fraud if one person (particularly
the wealthier one)
deliberately misstates his or her financial condition. For example, if
a man hides assets
from his future wife so that she will agree to a low level of support
in case of divorce, a
court probably would declare the agreement invalid. Similarly, if one
person exerts
excessive emotional pressure on the other to sign the agreement, a court
also might
declare the agreement to be invalid because of duress.
Q. When should the agreement be signed?
A. Most states do not set a specific time at which premarital
agreements must be signed.
Generally, it is better to negotiate and sign the agreement well before
the wedding, to
show that each person has considered it thoroughly and signed it voluntarily.
If the
wealthier person shows the agreement to the prospective spouse only one
day before the
wedding, a court may later find that agreement invalid because of duress.
While a lastminute
premarital agreement is not automatically invalid, timing may be a significant
factor in determining whether the agreement is valid.
Q. Must the parties to a premarital agreement be represented
by lawyers?
A. No, but lawyers can help make sure that the agreement is drafted
properly and that
both parties are making informed decisions. The lawyer for the wealthier
party usually
prepares the initial draft of the agreement. The less wealthy party does
not need to have a
lawyer in order to have a valid agreement, but the agreement is more likely
to be
enforceable if that person's interests are represented and some back-and-forth
negotiations
take place.
Q. Do premarital agreements need to provide for a certain amount
of support?
A. No, the law does not set a specific amount. In some cases,
a court may decide that an
agreement is enforceable even if it leaves one spouse with no property
and no support
from the other party. If, when the marriage ends, the less wealthy party
does not have
marketable job skills or is not able to work, a court would be likely
to refuse to enforce an
agreement denying support. Some states will enforce an agreement to provide
no spousal
support, so long as waiver of support does not leave the less wealthy
party so poor that
she or he is eligible for welfare.
Many courts will apply broader notions of fairness and require support
at a level
higher than subsistence. Some states provide that the support cannot be
"unconscionably"
low. That is a vague term that means different things to different courts.
Many lawyers think it is a good idea for premarital agreements to contain
an
"escalator clause" or a "phase-in provision" that
will increase the amount of assets or
support given to the less wealthy spouse based on the length of the marriage
or an
increase in the wealthier party's assets or income after the agreement
is made.
Q. May premarital agreements decide future issues of custody
and child support?
A. No. A court may consider a premarital agreement the parties
have reached regarding
child custody or support, but the court is not bound by it. Broadly speaking,
courts do not
want parties to bargain away rights of children, particularly before children
are even born.
(A later section on child support will discuss child support guidelines.)
Duties of Marriage
Q. Are one or both spouses required to work outside the home?
A. No. While the husband and wife are married and living together,
a court is not going to
get involved in private family decisions of who works and who does not.
That's left to the
husband and wife to sort out. Today, more than half of married women--including
women
with preschool-age children--work outside the home. A husband or wife
cannot, as a
matter of law, force his or her partner to work.
Q. If the wife and husband separate or divorce, can a court require
them to work
outside the home?
A. No, not directly. If a wife and husband separate or divorce,
a court still cannot directly
order one or both of them to work. The court can, however, declare that
one or both
parties owe a duty of financial support to the other party or to the children.
A duty of
financial support means that person who is supposed to pay support must
come up with
the money somehow -- usually from work or from savings. If the person
who is supposed
to pay support does not pay the money and does not have a good excuse
why the money
has not been paid, that person could be held in contempt of court. The
possible penalties
for being held in contempt of court include payment of fines and incarceration.
Payments
of child support and alimony will be discussed later.
Q. Are there legal remedies if a husband or wife refuses to have
sexual relations
with his or her spouse?
A. In some states, the refusal to have sexual relations with
a spouse is a specific ground
for divorce or annulment of the marriage. In other states, refusal to
have sexual relations
could be considered a ground for divorce because it is an "irreconcilable
difference" or
"mental cruelty." A court, of course, would not order a person
to have sexual relations
with his or her spouse. In fact, in many states, a spouse who forces sexual
relations with a
partner can be charged with rape under the state's criminal laws.
Q. What is loss of consortium?
A. Loss of consortium refers to the loss of companionship and
sexual relationship with
one's spouse. (The concept also can apply more broadly to the loss of
companionship and
affection from other family members such as a child or parent.) In personal
injury actions,
plaintiffs may seek monetary damages for loss of consortium in addition
to payment for
other losses such as medical expenses, lost wages, and physical pain and
suffering. For
example, if a man is injured in an auto accident caused by a negligent
driver and the man
is unable to have sexual relations with his wife for two years because
of the accident, both
the husband and wife may seek damages for that loss.
Q. May wives and husbands sue each other?
A. Yes. They can sue each other, of course, in connection with
a divorce. They also
usually can sue each other in connection with financial deals in which
one may have
cheated the other. A growing number of states also will allow one spouse
to sue the other
for deliberate personal injuries, such as those suffered in a beating.
Some husbands and
wives may try to sue each other in connection with an auto accident in
which one of them,
as the driver, accidentally causes injury to the other, who was a passenger.
In effect, the
person suing may be trying to collect money from an insurance company
rather from the
person's spouse. Many states do not allow such lawsuits.
Q. Can a husband or wife testify against each other in court?
A. Yes. Husbands and wives routinely testify against each other
in divorce cases. There is
an old rule of law in many states that husbands and wives cannot testify
about
communications between themselves made during the marriage. Although the
rule may
be applied in some circumstances, it generally does not apply if the husband
and wife are
involved in a lawsuit against each other.
Living Together Outside of Marriage
Q. Can two people live together without being married?
A. Of course. The Census Bureau reports that such arrangements
are quite common.
Some zoning laws do prohibit more than three unrelated persons from living
together in
one house or apartment, but two unrelated people generally can live together
anywhere
they want. A few states still have laws on the books prohibiting "fornication"--sexual
relations between a man and woman who are not married--but such laws are
virtually
never enforced. Some states also have laws against "sodomy"
which, among other things,
prohibit sexual relations between people of the same sex. Those laws are
rarely enforced
if the conduct is private, consensual, and between adults (although in
1986, the United
States Supreme Court in a divided decision did uphold a Georgia law criminalizing
private sexual relations between two men.)
Q. May two people who are living together enter into agreements
about sharing
expenses or acquiring property?
A. Yes. The law allows people to enter into many types of contracts.
If two people want
to agree about who will pay what and how they will share in property that
they might
acquire, such an agreement can be valid and enforceable by courts in most
states. From a
legal standpoint, it is best to make the agreements specific and in writing.
An oral
agreement might be enforceable, but it is more difficult to prove. Each
party to the
agreement should give some benefit to the other party, such as agreeing
to pay a certain
portion of expenses. If an agreement looks as though it is only creating
a gift from one
party to the other with the recipient giving nothing in return, the agreement
might not be
enforceable.
Q. Will a court enforce an agreement by which one unmarried partner
agrees to
keep house and the other promises financial support?
A. Probably not. To begin with, such agreements rarely are in
writing, so they are hard to
prove in court. Second, to the extent that one person is promising financial
support to the
other, that promise usually is contingent on a continuation of the relationship.
If, for
example, one partner says, "I'll take care of you," the statement
may be too vague to be
enforceable; if it means anything, it probably means something along the
lines of "I'll
support you financially as long as we are living together." So, if
the couple breaks up, a
court probably would not find an enforceable promise for continued support.
There is a potential third problem: if a court thinks an agreement amounts
to
providing financial support in exchange for sexual relations, the court
will not enforce it.
Such an agreement is uncomfortably close to a contract for prostitution.
Courts are more inclined to enforce agreements for tangible items, such
as
payments of expenses or rights to property. A promise of housekeeping
services or
emotional support for a partner may be sincere, but it is much more amorphous
than a
promise to pay half the phone bill or share the proceeds of a condominium
sale.
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