The process of getting married can be one of the most wonderful, exciting … and stressful periods in a person’s life. There’s so much to plan for and do (and so many people to impress) that it can be hard to focus on what’s really important – the fact that you are making a commitment to love, honor and cherish the person who is (hopefully) the love of your life.
In the midst of deciding what flavor of cake to have and who will make the cut in terms of getting an invitation, please don’t overlook the fact that marriage is a change in legal status for both of you. While certainly not the most romantic of wedding preparations, you may want to think about meeting with your attorney well in advance of the blessed day, to make sure your legal ducks are in a row before you say “I do.” If you ask nicely, your lawyer might even agree to spread rose petals on the floor of his or her office to mark the occasion (for a small fee of course)!
Anyway, here are five legal questions you will want to consider before you take the plunge:
1) What are your assets?
In most states, assets acquired prior to marriage are considered the separate property of the spouse who acquired them. However, under certain circumstances, separate property can become marital or community property. What are your shared (or unshared) expectations regarding such assets? Do you have a plan for how assets acquired after the wedding will be handled? Also, make sure you discuss your business as part of this conversation. Even if the business doesn’t have many assets, the business itself is an asset that needs to be dealt with.
2) How are you going to handle finances?
Are your separate checking accounts going away and everything will be in one joint account? Are you going to continue living separate financial lives? Maybe you’ll play it down the middle and have “his, hers and ours” type accounts. Regardless of what you decide, I suggest that you make a decision – any decision – before the wedding. I render no advice about which approach is best, but I know plenty of marital spats could be avoided if folks would make these decisions before the wedding day (instead of trying to make them when one of the newlyweds wants to spend $1,000 to go diving in a shark cage on the honeymoon).
3) What are your debts and obligations?
Now, I’m not suggesting that you run a credit report or have a minimum credit score requirement for your spouse. However, I know someone who decided to get married primarily because she liked her new husband’s choice in shoes – so you could use worse criteria. My bride-to-be and I had this very discussion, and I had to disclose that in addition to my student loans, I had racked up quite a bit of credit card debt during law school. She still made the mistake of marrying me, but at least she couldn’t say I didn’t warn her about the credit card debt. Also, like the joint vs. separate checking account conversation, I think it’s better to have this discussion before the wedding day. You need to know going in how much of the family income will be going to cover debt payments, and whether your spouse will be a help or a hindrance when it comes time to apply for mortgages and other loans.
4) Are we going to bite the bullet and get a prenup?
“Darling, I love you more than anything. I can’t imagine my life without you … Whaddya say we each get our own an attorney and hash out how our assets will be divided if we ever get a divorce?!” Yes, that is what you’re doing when you decide to get a pre-nuptial agreement. I absolutely understand why people don’t want to do them. They can be painful and a bit awkward (and, I mean, you probably won’t ever get a divorce). I also understand why people don’t want to get the vaccination for diphtheria, tetanus and acellular pertussis (DTaP). The DTaP vaccination can be painful and a bit awkward (and, I mean, you probably won’t ever get diphtheria). However, in return for the small amount of pain and awkwardness caused by the DTaP vaccine, you get the peace of mind of knowing you have almost no chance of contracting diphtheria. Similarly, in return for the small amount of pain and awkwardness caused by a prenup, you get the peace of mind of knowing how your assets are going to be divided if you ever get a divorce (and that you won’t have to pay a divorce attorney thousands to fight about it). At the end of the day, I think both the DTaP vaccine and the prenup are almost certainly worth it.
5) What about our estate plan?
If neither of you have a will, a trust, a medical or financial power of attorney or a living will, then your impending nuptials are a perfect time to get this work done. Opt for the cash bar instead of the open bar at the reception, and use the savings to pay for a comprehensive estate plan (I promise your guests won’t mind). If one or both of you do have these documents, then your marriage likely means they need to be amended. You want to make sure you don’t unwittingly disinherit your spouse, or allow your mom (instead of your spouse) to have the authority to make decisions regarding your medical care if/when you become incapacitated.
Be aware that asking these questions before marriage may necessitate speaking with an attorney (either separately or jointly with your spouse-to-be). The thought of visiting an attorney may be frightening to you. However, just think, if you take that step and consult with an attorney prior to getting married, you may just conquer that fear of lawyers (and your fear of commitment) at the same time!