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Marriage - An Overview
For centuries marriage has been viewed as the basis of the family unit. Marriage is a personal commitment between two consenting adults, but it is also a legal relationship that changes the legal status of both parties. Historically, the husband had a duty to provide food, a home, and clothing; the wife was obligated to maintain the home, raise children, and all her property became her husband's. The legal rights and obligations associated with marriage have evolved with our society and today are generally equitable between both parties. Each state has its own rules about marriage, but some uniform principles do exist. An experienced family law attorney from Kathleen M. Newman + Associates, P.A. in Minneapolis, MN, can explain the laws that apply to you.
Formal Requirements of Marriage
All states prohibit marriage to more than one person and marriages between close family members. The majority of states do not recognize same-sex marriages or marriage-like unions between people of the same sex. The remaining limitations and requirements vary by state, but some of the typical rules relate to age, medical exams, licensing, blood tests, and waiting periods.
When people announce their intent to marry, some respond with the question, "why would you want to do that?" Marriage is more than a romantic relationship. Marriage is a legal relationship that affords the couple many federal and state rights and benefits that are unavailable to single people. Although state law varies, most states give married couples the following rights, benefits, and privileges:
- Joint federal and state income tax returns may offer advantageous tax rates, credits, or both
- Ability to 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)
- Ability to receive your spouse's and dependents' Social Security, disability, unemployment, veterans', pension, and public assistance benefits
- Inheritance rights under state intestate succession laws
- Right to sue a third person for wrongful death of your spouse and loss of consortium
- Right to 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
- Make medical decisions about your spouse in the event of disability
- Enjoy legally protected communication by asserting the marital communications privilege to avoid testifying against your spouse in a legal proceeding
Common Law Marriage
Couples who live together for a certain period of time may be entitled to the legal benefits and obligations of married couples, only if certain requirements are met. If individuals do meet the common law marriage requirements, they must go through a formal divorce to end the relationship. Generally, a common law marriage is recognized when a heterosexual couple lives together in a common law marriage state for a "significant period of time." No state defines the time period, but typically it is a period of ten years. The couple must also have the intent to be married, which is generally measured by whether or not the couple presents themselves to the public as a married couple. Examples include sharing the same last name, filing joint tax returns and referring to each other as husband or wife.
Lesbian and gay couples have been lobbying state courts for the legal rights and obligations given to heterosexual married couples since the 1970s. Many companies offer benefits to domestic partners regardless of the sex, but most government units have not followed suit. It is important to note the United States Supreme Court declared marriage to be "one of the basic civil rights of man" and is part of the fundamental right of privacy in the United States Constitution. Yet, to date, most gay couples are denied this right.
Without legal recognition as a married couple, gay partners do not receive the same benefits heterosexuals do. For example, gay couples do not have the legal right to inherit property without a will, they do not have right to support or child support if they separate and they do not have the right to sue for wrongful death. Additionally, most gay couples have no medical rights or family leave benefits, unless provided privately by the employer and no federal tax rights associated with their relationship.
Only one state, the Commonwealth of Massachusetts (June 2006), recognizes same-sex marriage. Five countries, The Netherlands, Belgium, Canada, Spain, and South Africa also recognize same sex marriages.
As of April 2007 California, Connecticut, the District of Columbia, Hawaii, Maine, New Jersey, and Vermont recognize same-sex unions and provide comparable legal status to persons in a civil marriage through domestic partnerships, civil unions, or reciprocal beneficiary laws. Currently, the countries of Croatia, Denmark, Finland, France, Germany, Hungary, Iceland, Israel, Luxembourg, New Zealand, Norway, Portugal, Slovenia, Sweden, Switzerland, and the United Kingdom recognize same-sex relationships through domestic partnership, civil union, or other laws. The rights available to same-sex couples in each country vary.
Many US states have adopted constitutional amendments that specifically prohibit the recognition of same-sex marriages, limiting civil marriage to a legal relationship between a man and a woman. Additionally, most states have statutes that limit the definition of marriage to two persons of the opposite sex. On May 18, 2006, the Republican members of the Senate Judiciary Committee voted on the Federal Marriage Amendment, a proposed Constitutional amendment that would prohibit states from recognizing same-sex marriages. The measure passed by a party line vote. The measure was debated by the full United States Senate and defeated in a 49-48 vote on June 7, 2006.
Premarital and Cohabitation Agreements
A cohabitation agreement between two people will be recognized and enforced by a court regardless of the sex of the parties, if no other elements render the agreement invalid.
Although not very romantic, premarital agreements, often called prenuptial or antenuptial agreements, are an effective tool for defining the legal relationship between two people about to be married, or even simply living together. The process of creating the agreement can clarify each person's expectations, as well as any assumptions or potential misunderstandings. Often, if one of the spouses enters the marriage with significant property or assets a premarital agreement can protect that property from being considered marital property by the courts in the event of a divorce. The intent of the agreement is to create a framework for handling money and property issues during the marriage and how to divide property if the relationship ends.
Each state has its own laws about what can be included in a premarital agreement. Most states will not uphold agreements about child support and will not uphold an agreement that was created fraudulently or unfairly. For example, some courts may consider requesting a spouse to sign an agreement five minutes before the wedding unfair.
Getting married is one of the most significant events in a person's lifetime. For the individuals it is a reflection of an emotional commitment, but marriage also establishes an important legal relationship. Understanding your rights, obligations, and status as a married individuals will help you fully appreciate the step you are taking. Consult with an experienced family law attorney at Kathleen M. Newman + Associates, P.A. in Minneapolis, MN, to decide if you a premarital agreement is right for you.
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