Marriage Law

Marriage is a legal status in which two people are joined in the eyes of the law. It normally involves a couple obtaining a marriage license and then exchanging vows in a ceremony performed by a sanctioned official. When a couple gets married, they gain several rights, including certain favored tax statuses, the ability to make decisions if their spouses are incapacitated and property rights.

Traditional Marriage

For hundreds of years, the right to marry was accorded only to heterosexual couples. In 1996, Congress passed the Defense of Marriage Act, or DOMA, which prohibited marriages between people of the same gender. However, in 2013, the U.S. Supreme Court ruled that DOMA violated the 5th Amendment, and some states then passed laws allowing same-sex couples to marry as well. Each state has its own requirements for obtaining marriage licenses and the people who are allowed to officiate. Certain types of marriage are prohibited as they are against public policy.

Same-Sex Marriage

The landscape of marriage changed in June 2015. In a supreme court ruling, the court held that prohibiting marriages between couples on the basis of their genders was unconstitutional. This decision effectively overturned all prohibitions against same-sex marriage, granting many people the right to marry for the first time.

Common Law Marriage

Some states will recognize unions between couples who do not get a license or go through a marriage ceremony. This is called a common law marriage. In those states that do recognize this status, common law spouses enjoy the same rights as spouses in other marriages. If their relationship dissolves, a couple in a common law marriage will likely have to go through a divorce or dissolution procedure.

Most states that do recognize common law marriage hold similar requirements for couples:

• Both people must meet the state’s age of consent
• Neither person can already be married
• Both individuals must be of sound mind
• The couple must live together

Marital Agreements

Before marrying, some couples choose to enter into prenuptial agreements concerning their property rights and duties during their marriages. Topics covered in a prenuptial agreement might include:

• How finances will be handled during the marriage
• How property will be split during a divorce
• Who is responsible for what debts
• How property will be passed down if a spouse dies
• How to settle any future disagreements

It is important to note, however, that there are some topics that a prenuptial agreement cannot include. Rules about any nonfinancial matters, such as chores, relationships with in-laws, agreements about last names or child custody, cannot be included in prenups. Prenuptial agreements may also not contain provisions that violate public policy. A court can also void a prenup if it finds that one spouse was coerced or forced into signing it.

Couples who have already married can consider drafting a postnuptial agreement. A postnuptial agreement covers similar topics to those in a prenuptial agreement, and it can often help ease tensions in a marriage caused by uncertainty about finances. In drafting either a prenuptial or postnuptial agreement, it is generally a good idea for each spouse to have their own attorney to look out for their interests.