Frequently Asked Questions about Marriage

Q: What is the legal definition of marriage?

A: Most states define marriage as a civil contract between a man and a woman to become husband and wife. The traditional process to marry is to obtain a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony where the couple exchanges vows and is pronounced husband and wife by a presiding officiant.

Q: What is a marriage license?

A: A marriage license is a document that authorizes the person performing the marriage ceremony to marry the man and the woman.

Q: Who can perform the marriage ceremony?

A: A marriage ceremony can be performed by:

• Any Federal, State, or Municipal judge or magistrate (even if they are retired);
• Any county clerk;
• Any mayor or deputy mayor of a town;
• Chairman of any township committee;
• Any religious minister.

Q: What is the Uniform Pre-Marital Agreement Act?

A: This act has been adopted by 26 states and the District of Columbia (Alaska, Arizona, California, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, and Virginia). It provides legal guidelines for unmarried couples who wish to make agreements in anticipation of marriage regarding ownership, management, and control of property and assets; property and asset disposition upon separation, divorce and death; alimony; wills and life insurance beneficiaries. The statute expressly prohibits couples from including provisions concerning child support. Pre-marital agreements are permitted in states that have not adopted this uniform statute, but are subject to different guidelines in those states.

Q: What is a common law marriage?

A: In order to have a valid common law marriage, the couple must do all of the following:

• Cohabit or live together for a significant period of time. No state defines the time periods, but it is several years;
  
  
• The couple must hold themselves out as a married couple. For example, using the same last name, referring to the other as "my husband" or "my wife" and filing a joint tax return;
  
  
• The couple must intend to be married.
  
  

A common law marriage is not created when two people simply live together for a certain number of years. If a common law marriage exists, the spouses receive the same legal treatment given to formally married couples, including the requirement that they go through a legal divorce to end the marriage.

Q: What are the legal effects of marriage?

A: Marriage entails many rights and benefits. In most states, spouses are accorded the right to:

• File joint income tax returns with the IRS and state taxing authorities;
  
  
• Create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income);
  
  
• Create a marital life estate trust;
  
  
• Receive spouse's and dependents' Social Security, disability, unemployment, veterans', pension and public assistance benefits;
  
  
• Receive a share of your deceased spouse's estate under intestate succession laws;
  
  
• Claim an estate tax marital deduction;
  
  
• Sue a third person for wrongful death of your spouse and loss of consortium;
  
  
• Sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these lawsuits are available in only a few states);
  
  
• Receive family rates for insurance;
  
  
• Avoid the deportation of a non-citizen spouse;
  
  
• Enter hospital intensive care units, jails and other places where visitors are restricted to immediate family;
  
  
• Live in neighborhoods zoned for "families only";
  
  
• Make medical decisions about your spouse in the event of disability; and
  
  
• Claim the marital communications privilege, which means a court can't force you to disclose the contents of confidential communications between you and your spouse during your marriage.
  
  

Q: What is a prenuptial agreement?

A: A prenuptial agreement is a binding agreement entered into prior to the marriage in which the parties, in however much detail they wish, set forth what will happen to their income and assets, including real and personal property, in the event the marriage ends in death, divorce, or separation.

Q: My partner and I live together but we aren't planning to get married. Do we need a written agreement similar to a prenuptial agreement?

A: People who live together for long periods of time accumulate property jointly, which makes it important to prepare a written contract about who owns the property. If you and your partner do end up separating or one of you passes away, a written document delineating who owns any property and assets you had can help avoid conflict while you are together as well as with family members and friends after a death.

Q: Won't my partner think I don't trust him/her if I request such an agreement?

A: That is a common fear and sometimes people do respond that way. Both marriage and divorce are, in essence, business relationships. Applying a formalized structure to how they function helps avoid conflict and misunderstanding. However, couples who communicate openly and have a relationship based on trust should not experience undue resistance, especially if the intent is clearly explained. If you are considering creating a pre-nuptial agreement, do it well in advance of your wedding, so you and your fiancé have time to discuss issues that arise and are not stressed about the agreement right before your special day.

Q: What is separate property and what is marital property?

A: For most couples, the difference between marital and separate property matters very little. Typically it only becomes an issue if they divorce or if creditors attempt to reclaim property. Upon divorce, the importance of the distinction between marital and separate property varies from state to state. Generally, marital property is property acquired or earned during the marriage. Separate property is property owned prior to the marriage or received by gift or inheritance.

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