Why is it that people get married? Just speaking from my own experience, about 27 years ago my wife and I decided that we had found a partner that we wanted to spend the rest of our lives with. We enjoyed being with each other, inspired one another and shared dreams and aspirations including wanting to build a family together. Marriage was the ultimate commitment and natural progression based on everything we had been taught growing up. While we embraced this commitment, and continue to do so to this day, we didn’t think much about the rights and responsibilities that we created for one another the moment we got married. I read something recently indicating that upon marriage there are some 1,138 Federal rights, protections and responsibilities that arise from getting married. There are numerous others that arise under State law. When we enter into contracts that create rights and responsibilities between whomever we are contracting with, we educate ourselves to make sure we understand what commitments we have made and what consequences there are for entering into the contract. When couples get married they don’t necessarily understand the scope of the legal commitment they have made to one another. This blog touches on some of these commitments, on how these commitments should be well understood by couples planning to marry, and explores premarital agreements and altering the legal impact of marriage.
Fiduciary Duty to Each Other. When you get married you legally become business partners with a responsibility to treat one another with good faith and fair dealing. I was a divorce attorney at the time I got married so I understood the legal impacts of marriage, but most people getting married don’t expressly understand that legal commitment being made. This fiduciary responsibility makes it so you can’t do things that unfairly take advantage of the other spouse. If you do so, such as by having your spouse sign away rights to property, that transaction can be scrutinized and undone if you can’t overcome the presumption that you breached your fiduciary obligation to your spouse. This concept was not explained to my Wife and I before we got married, and I imagine most other couples would say the same thing.
1,138 Federal Rights, Protections and Responsibilities? When I got married one clear benefit that I was aware of was that upon marriage my spouse became eligible to be placed on my health insurance policy. I also understood we could thereafter file joint tax returns. I have since become aware of many of the other Federal impacts associated with getting married, but most of us don’t understand that the moment we marry we are entitled to many benefits, but we also subject to many additional responsibilities. Some of these include family leave rights, social security rights including death benefits and derivative rights, retirement benefits, liability for one another’s tax obligation, marriage tax penalty when filing separately, and estate rights.
State Rights and Responsibilities Coupled with these federal benefits and responsibilities are a number of rights and responsibilities arising from state law. When couples divorce, the rights and obligations they owe each other regarding the sharing of children, child and spousal support and the division of their assets and debts, are governed by the laws of the state where the divorce is taking place. California is a community property state which means that all assets and obligations accumulated between the date of marriage and the date of separation are community assets and subject to an equal division in the event of divorce. As soon as a couple is married, California places a responsibility on the spouses to provide financially for one another (spousal support) in the event of divorce. Spouses may or may not recognize that they are signing on to these responsibilities as soon as they marry. There is not someone typically advising couples considering marriage of the degree or amount of responsibility they are taking on when they get married. Simply by virtue of marriage and then by passage of time rights attach that are not typically addressed or considered by the couple until issues arise and they seek to end their marriage.
So How Do Prenups Fit Into All of This? Married spouses have a fiduciary duty to each other. Partners considering marriage do not have that same duty. A Premarital Agreement allows for the couple to change the rights and responsibilities they will have with each other incident to their divorce. For example, the couple can agree that although they may contribute to their retirement during the course of their marriage, that they are agreeing to keep any retirement contributions as their separate property. While if they sought to make this arrangement during the marriage the fairness of the agreement would be scrutinized given their fiduciary duty to one another, that is not the case with a premarital agreement and the couple can agree to alter the rules with a valid Premarital Agreement. Couples can agree to keep all of their income as separate, can agree to waive inheritance rights, and can even agree to waive the right to seek support from one another in the event of divorce. There are certain limitations and requirements so if you seek to enter into a premarital agreement, it is essential that you speak with an attorney regarding the specifics of your situation. If you and your soon to be spouse want to change the way your anticipated marriage will impact your rights, exploring signing a possible prenup is a good option.
Know Your Rights and Responsibilities. Many couples don’t become educated on the rights and responsibilities they became subject to by getting married until things don’t work out and they are in the process of getting divorced. Ignorance of the consequences is not an argument that can be made to a Judge to avoid the responsibilities. It is important for couples to become educated on the impacts of marriage including understanding the rights they will obtain through marriage as well as the obligations they are taking on. If those terms are acceptable then the marriage takes place with a complete understanding of the impacts. If the terms are not acceptable then the couple can discuss possibly entering into a Premarital Agreement or they can choose to not get married. I have worked with many couples who are surprised and even shocked when they learn about the responsibilities they have for their spouse. This education should be required before each marriage so a knowing decision can be made by the couple, instead of at divorce when the finding out may be a bit too late.