Marriage: Frequently Asked Questions

1. What are the key legal issues I should consider before marriage?

2. We have very few assets; do we need a prenuptial agreement?

3. As a couple about to be married, what are the legal steps we have to take to combine our assets?

4. Do we have to have a license to be legally married?

5. Whom do I have to inform about changing my name?

6. What are the legal issues if I don't change my name?

7. I want my one-year-old to have my new husband's last name. What are the legal steps I must take?

8. We're getting married outside the country. Do we need special documents?

9. I had my ring appraised and the value is far less than we paid for it. Do I have any legal rights here?

10. I have to change my honeymoon travel plans. What are my rights?

11. If someone drinks at my reception and is in an accident, am I liable?

12. If a vendor cancels at the last minute, do I have any legal recourse?

13. If I have stock of my own, will it belong to my husband after we're married?

14. What are the legal steps we have to take to change the title on my property once we're married?

15. Should I have written contracts with my wedding vendors?

16. Is estate planning something we should be thinking about yet?

17. My fiancé has a lot of debt. Will I be legally responsible for it when I get married?

18. If the vendor's work was below the standard that was promised to me, do I have any legal recourse?

19. My friend called off her engagement. Does she legally have to return the ring?

20. My photographer says he has the legal right to keep the negatives of my wedding photos. Is he right?

1. What are the key legal issues I should consider before marriage?

ANSWER
Getting a valid marriage license and being married by someone licensed by the state to perform the ceremony is the first consideration. Some states may require a blood test as a condition to getting the license, so check your local laws. Make sure there is nothing legally keeping the two of you from getting married. For example, if you've been married previously, make sure you have obtained a valid divorce before your wedding. Be prepared to show the appropriate documents. Beyond these initial issues, you may wish to consider the tax implications of marriage and how your tax bracket could change. Also, if one of the prospective spouses has children from a previous relationship, consider how the new spouse's income may affect the other spouse's obligation to pay--or the ability to continue to receive--support.

Your main concern should be property. While a marriage ideally is about love and trust, it is wise to take stock of the assets each party is bringing into the union and to consider whether and how those assets will be shared. Further, you may wish to consider--and agree upon--prior to the marriage how property acquired during the marriage will be divided in the event of a divorce. Also, if you don't have a will, now is a good time to think about getting one. In most cases, if you die without a will, your spouse is entitled to most--if not all--of your estate. So, if you wish to leave any of your property to your friends, parents or other relatives, you should make a will that designates accordingly.

ANSWER
The purpose of a prenuptial agreement is to set some parameters about the division of assets in the event of a divorce. Therefore, many family lawyers would suggest that everyone sign a prenuptial agreement despite the amount of assets they have at the time of their marriage. Furthermore, financial situations can change over time and a prenuptial agreement can help couples deal with this scenario in light of a divorce.

As a general rule, couples that have children or grandchildren from a previous marriage; own or are a partner in a business, law firm, or medical practice; or possess significant assets or property should definitely consider signing a prenuptial agreement. It's also worth considering if one of them has much more money than his or her prospective spouse or plans to support the other through college or a professional school. In addition, both parties to a prenuptial agreement should hire their own lawyers to ensure it is upheld later.

ANSWER
Holding property jointly is a way to avoid hassles if one spouse dies during the marriage. Usually, ownership will automatically pass to the surviving spouse. The primary way to combine your assets is by opening joint accounts and transferring your cash from separate accounts into them.

For assets other than cash, such as stocks, bonds, and real estate, the laws vary from state to state and will depend upon whether the asset is held by title or deed. Generally, if the asset is held by title--such as a car or truck--changing title to reflect joint ownership is a simple administrative procedure. Check with the local office in the state where title is registered for specific rules. In the case of real estate, or other property held by deed, the rules can be a bit more complex. In some states, adding another person to the deed can be done via an administrative procedure, in others, it may require a separate transaction. Check your local laws.

ANSWER
A valid license and "solemnization," usually through a ceremony by a person authorized by the state to conduct it, are formalities that most states require for a couple to be considered legally married. Most states require prospective spouses to obtain a license before a marriage ceremony can be performed.

Fewer than 10 states still recognize what was known as "common-law marriage." Generally, common-law marriage grants couples that hold themselves out as married the rights and responsibilities of other lawfully married couples, though they had never obtained a license or gone through the formalities of a ceremony. But getting a valid license and undergoing the formality of a ceremony by someone licensed by the state to perform it is the best way of ensuring that your union will be recognized under the law.

ANSWER
Requirements vary from state to state. Generally, one may change one's name merely by using the new name, as long as fraud--such as to evade taxes or hide from the law--is not intended and the name is not offensive, for example, using an obscenity or epithet as a name.

As a practical matter, however, banks and other financial institutions, as well as government agencies, such as the motor vehicle bureau and passport office, will require you to show a marriage certificate as evidence that your name change has some basis in law. You will also need a valid marriage certificate to change your name on your Social Security card. Getting these important documents changed first can facilitate future changes and avoid confusion later.

ANSWER
None. You may continue using your maiden name without any legal ramifications and still reap the benefits of marriage. Your only problems are likely to be social, based on old customs that die hard.

ANSWER
Normally, adoption by your new husband would suffice, but the child's biological father would have to agree to relinquish his parental rights. Another, less drastic, measure would be to petition a court for the child's last name to be changed from his to his stepfather's. The court may seek to get the biological father's permission before it orders a name change and refuse to allow the change if the father objects. However, the court has discretion, and may refuse to honor the biological father's wishes if the name change would be in the best interests of the child and only for a very good reason--for example, if the name carries notoriety because the father was convicted of an infamous crime.

ANSWER
U.S. citizens marrying each other abroad need no permission or special documents from the United States. Normally, such marriages are valid in the United States, as long as they are legally performed and considered valid in the country where they take place.

However, the country where you plan to marry may have its own, special requirements, possibly including a lengthy waiting period. Of course, you will need your passports and possibly be required to produce birth certificates, and, if appropriate, divorce decrees or death certificates. Some countries also require proof of legal capacity to enter into a marriage contract. In this case, the couple will have to execute an "affidavit of eligibility to marry"--usually at the U.S. embassy or consulate in the country where the marriage will be performed. If the country permits, it may be possible to execute such a statement before one of the country's consular officers in the United States. Your best bet is to check the rules of the specific country before you set the wedding date there.

ANSWER
Maybe. People who merely get a "bad deal" when purchasing merchandise usually lack legal grounds to cry "foul" later and no have other recourse than to appeal to the merchant's commitment to customer service. However, if the seller misrepresented the ring's value, the buyer probably could return the ring and get his or her money back. Also, if the ring's value was truly far less than its worth, the sale could have been based on unfair conduct or deception, which is fraudulent and illegal under federal law--as well as the law of many states. Such a finding would not only entitle the ring's buyer to cancel the sales contract but possibly to damages as well.

ANSWER
When you made your travel arrangements, you entered into a contract with the airline, hotel, etc. A common myth related to consumer contracts is that consumers have the legal right to cancel these contracts for any reason at all. Some contracts for travel arrangements include penalties--such as forfeiture of deposit, etc.--if you break them. So, read all contracts carefully before entering into them--especially if you're unsure whether you will be able to stick to your end of the bargain. If the changes you wish to make merely involve moving the dates--not the place--of your honeymoon, see if your travel agent, hotel, airline, etc., can accommodate the changes you need. In all likelihood, they will want to keep your business by making you happy. But consider that you still may have to pay extra, as these businesses could incur costs associated with the changes you desire.

On the other hand, if you're seeking changes in your accommodations, for example, because you've discovered they are not what they purport to be, you may have legal grounds to seek your money back--and perhaps even damages if you've incurred extra expenses to make the changes. A good example of this would be a resort that billed itself as a honeymoon paradise and enticed you with brochures depicting swaying palms along a tropical beach. But you learn before going that the "resort" is actually located in a swamp next to a toxic waste dump far from the shoreline. Federal law--as well as the laws of many states--forbid false and deceptive business tactics and would likely support your claims based upon misrepresentations made by a business.

11. If someone drinks at my reception and is in an accident, am I liable?

ANSWER
A few states impose liability on social hosts, but only for injuries on the premises. In other states, people who serve alcohol to drivers who then injure others on the road may be held liable as well. Many states impose liability on commercial vendors of alcohol, including bars, package stores and a caterer for a wedding, for injury to others caused by drunken patrons. In some states, a vendor has a duty to withhold liquor to prevent a customer from injuring himself or others. Check the laws of your state to find out what precautions you should take.

ANSWER
If you entered into a contract with the vendor and the vendor breaches it, then you may file a complaint in small claims court if you can show that the breach harmed you financially and that the vendor refuses to make restitution. Small claims courts help people recover small sums of money without having to hire a lawyer. These courts offer consumers a chance to present their complaint, in person, to an impartial judge who can order the offending person or company to pay money owed. Court procedures are generally simple, informal and inexpensive. However, if the vendor gives you a refund of the purchase price--or your deposit back, if applicable--going to small claims court to recoup any added expense you incurred may not be worth your while. Of course, if your added expenses ran into the thousands of dollars, you might want to pursue this option.

ANSWER
Not automatically. Cash and other financial instruments, such as stocks and bonds, that are acquired by one spouse before the marriage usually remain the separate property of that spouse unless that spouse takes the proper steps to add the other spouse's name to the property.

Some assets acquired during the marriage, however, may be considered to be owned by both spouses and would have to be divided up in the event of divorce. Separate financial portfolios may be kept, with stocks and other securities owned by only one spouse. However, in the event of divorce, your spouse may challenge the assumption that these assets are separate. Also, depending on the state, property acquired by one spouse through inheritance may belong only to that spouse--even if it occurs after the marriage. So, it's worthwhile to check your local laws.

ANSWER
Some, but not all, states today approach the issue of property of married couples as community property. Some real estate that was initially acquired by a spouse before the marriage becomes community property after the marriage due to joint usage. This is to be honored irrespective of the actual titleholder of the property.

In some other states, however, changing names on property titles can be done through relatively simple administrative procedures, such as adding a spouse's name to title to a car by filing the proper forms at the local motor vehicle bureau. In still other states, a separate transaction may be required to change the title. You need to check the local laws because the actual steps to changing the name on a title vary from state to state. However, you can hire a titling agency to do the work and save yourself some research.

ANSWER
Absolutely. Without a written contract, it is very difficult to prove that a vendor is at fault if there are problems. In a breach of contract suit, courts place the burden of proof on the plaintiff. If you sue a vendor, it is up to you to prove to the court that the vendor breached the contract. Without a written contract setting forth the requirements for performance, a court case will simply be your word against the vendor--impossible to prove. It's not likely that you'll face a problem big enough to sue over, though. Most likely any problems will occur in the details. Having everything in writing means that the potential for confusion or mistakes is lessened. If your plans indicate a wine sauce for the chicken, it is much less likely the caterer will show up with a mushroom sauce if they can refer to a written contract.

ANSWER
Yes. Estate planning should come up every time your life changes significantly, and there aren't many things more life--changing than getting married. Many people think that "estate planning" is merely "writing your will," but it is much more than that. Put simply, estate planning is the process of identifying your financial goals, and formulating a plan to reach those goals. One goal of most people is leaving their loved ones in good financial shape in the event of a death, but paying for your children's college education is also a life goal you must plan for. There is no better time to take a close, hard, and long-term look at planning your financial future than when you have decided to share that future with someone you love.

ANSWER
Not necessarily. This is a complicated question, but in general, creditors cannot come after your assets for debts that are in your spouse's name only. The main factors are simply whose name is on the debt, and whose name is on the assets. If there is no match between the two, the assets are generally safe. If, however, the debt or assets are held jointly--by both you and your spouse--your assets may be fair game. For example, if you add your spouse's name to the title of a house you owned before the marriage, the IRS may place a lien on the house for your spouse's back taxes. If you leave the house solely in your name, the IRS cannot touch it, despite the marriage.

There are many restrictions on what creditors may or may not do to recover a debt, and your exact legal liability for your spouse's debts can depend on a myriad of factors, including the state you live in, and the types of debt. Almost all personal debt falls into one of the following categories: credit card, tax, student loans, personal loans, or mortgage. Back taxes and student loans are types of debt that can never be erased, even by declaring bankruptcy. A mortgage is secured by the house. As a resident of that house, you may not be legally affected by the debt, but you will certainly be affected if creditors call during dinnertime, or if the house goes into foreclosure. If you have chosen to marry this person, the question may not be one of legal responsibility, but common sense: it is in the best interest of your life together to manage your finances well by paying down your collective debt.

ANSWER
You have several lines of recourse if you feel you have received less than was promised you. Your first action should be to contact the vendor, lodge a complaint, and ask for a remedy--either some percentage of money back, or a percentage off your next dealings with them (a caterer, for example). If you are paying the vendor after their service, do not pay them until you have discussed the problems you perceived. If this does not satisfy you, contact organizations such as the Better Business Bureau to lodge a complaint. Your last recourse is to take the vendor to court. Often just the filing, or the threat of filing, a lawsuit will be enough to make the vendor settle with you. If the suit does go to trial, you must be able to put a monetary value on the deficiency and defend that value, in order to ask the court to award you damages. Not all problems are easily expressed in money, and not all problems can be litigated.

In any of these cases, having a written contract with the vendor stating exactly what you were expecting from them for what price will make the process a lot easier. Without that, you will have to rely on the vendor's desire to satisfy their customers (do not underestimate the power of a company's customer service pledge), or other proof that what they delivered was sub par. Remember, in a lawsuit the burden of proving that the vendor's work did not fulfill the agreement will fall on you.

ANSWER
There is no specific law that legally obligates a person to return the engagement ring if they end the engagement. However, be aware that many state courts allow lawsuits by the ring-giver to retrieve the ring. Most state courts interpret the ring as a gift, but a conditional one, based on a promise to marry. Once that promise is broken, the court may decide that the conditions of the gift were not met, and so the ring must be returned. If the court can be persuaded to interpret it as an unconditional gift, or that the condition was merely accepting the marriage proposal (but not promising marriage), the receiver of the ring wins the lawsuit and keeps the ring.

Some courts treat the exchange of an engagement ring as a contract, and so attempt to decide such lawsuits on blame. If the ring-receiver can establish that they ended the engagement because of some wrongdoing by the ring-giver (interpreted as a breach of contract), they will get to keep the ring. If the receiver simply ends the engagement arbitrarily, the "contract" is considered void, and conditions revert to pre-contract--the ring-giver gets the ring back.

ANSWER
Yes. As his "creations," the photographic negatives are the intellectual property of the photographer. In fact, photographs are copyrighted to the photographer, which gives them the exclusive right to reproduce the copyrighted work and distribute copies. However, many wedding photographers offer package deals that allow you to keep the negatives as part of the price. If you would like to keep your negatives, try negotiating with the photographer to do so for an additional fee. If he is not interested in giving up his right, your best recourse is to look for another photographer.

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