No one likes to have a divorce attorney around when they announce their engagement, or at their wedding, which I completely understand. That is why I put away my lawyer hat when my friends are planning their weddings. Even so, there is something that I secretly wish I could ask them. No, the question is not “are you sure you want to get married?” Even as a divorce attorney for more than a decade, I am still a romantic and do believe in marriage. Instead, the question I want to ask is “do you realize the legal obligations to which you are agreeing by getting married?” The follow up question would be, “would you rather not have those legal obligations apply to your marriage?”
Yes, a marriage is a legal relationship with an entire body of law that imposes rights and responsibilities upon married couples, just like a business relationship. Did you realize that spouses have a fiduciary relationship with one other? Other examples of fiduciary relationships are the attorney-client relationship, doctor-patient relationship, and company-stockholder relationship. However, unlike most other legal or business relationships, most people enter to these contracts without an understanding of the legal consequences.
I know that this is a classic attorney thing to say, but I would love for all engaged couples to sit down with a divorce attorney, preferably a mediator or someone who works in a collaborative manner, to learn the basic legal obligations that are created by a marriage so they can decide if that is best for them. If not, then a premarital agreement (prenup) might be beneficial.
Many people attend pre-marriage counseling during their engagement, so why not also try pre-marriage legal consultation? If someone who was engaged or thinking of becoming engaged came to me for such a consultation, here are some of the questions I would ask them:
1. Do you know what it means for California to be a community property state?
2. Do you have property and assets that you are bringing into the marriage? If so, if you divorce or predecease your current fiancé / future spouse, do you want that person to have a financial interest in that property or asset? Do you expect to have a right to, or financial interest in, the property that your fiancé owns before marriage? This can be asset specific.
3. Do you plan to buy real property or other large assets together? What if one person contributes more money toward that asset – if you divorce, will the asset be divided equally or divided proportionately according to the contribution? If one person uses their money/assets from before the marriage toward the acquisition of the property during the marriage, is that a loan or a gift?
4. Do either of you own a home prior to the marriage? If so, if the owner of the home predeceases the other spouse, can the surviving spouse inherit the entirety of the home, including any separate property interest?
5. Do you want to have to consult your spouse regarding the management and control of your assets?
6. Will your parents or other third parties help you financially? Will they expect to be reimbursed if you divorce or if you predecease your spouse? If they give you a gift, will that gift be a gift to the relationship and shared in the event of divorce, or a gift to you only and therefore not shared?
7. Do you plan to give your spouse expensive gifts? Do you consider those gifts to be the separate property of the other person? Or are large gifts really more of an investment for the marriage (i.e. art, antiques, etc.).
8. Are either of you expecting an inheritance? Will this inheritance require your efforts and/or income to maintain it? Will it produce income going forward?
9. What will happen with income that you earn during marriage? Will it go into joint accounts or will you keep separate accounts? Do you want your income to be community property or separate property? Are you both equally responsible for paying household expenses? Or will one person contribute more?
10. Is one of you a bigger spender than the other? How do you want to divide debt, including personal credit card debt, if you divorce? What about other unsecured loans?
11. Do you want to share your retirement if you divorce?
12. Will one of you begin a new business during marriage? Do you want it to be shared if you divorce?
13. Will one of you create intellectual property during marriage, especially property which might continue to generate income even after divorce?
14. Will your tax filing status be married filing jointly, or married filing separately? What if you can’t agree and there is a significant financial disadvantage to one person?
15. Do you plan to have children? Typically, you cannot make an agreement regarding custody and support as part of a premarital agreement, but what happens if you need assisted reproductive technology? If there is frozen sperm, eggs, and/or fertilized embryos stored at the time of your divorce, what do you want to do with them? What if one spouse dies during marriage – can the surviving spouse still use the genetic material to bring a child to term?
16. Is one of you going to be the “primary income earner” during the marriage? Will one of you expect spousal support if you divorce?
17. Do you understand the legal difference between a long-term marriage and a short-term marriage with respect to spousal support?
18. Is one of you sponsoring the other for a marriage visa? There are specific issues related to the marriage visa which should be discussed with an immigration attorney. One major issue is that of spousal support. By agreeing to sponsor a spouse, you also agree to spousal support obligations that could be greater than what would typically be required in the event of a divorce on its own.
19. If you do divorce, do you want to require that you attempt mediation prior to litigation?
These are just a few of the topics that I would want to discuss with an engaged couple as part of their pre-marriage legal consultation. Of course, all of these questions lead to the main question: do you need a premarital agreement? There is not clear answer and it really depends on the expectations of the marriage; however, you cannot know the answer to the question until you know the family law rules in your state. People often think about family law as only applying to them if they get divorced, but the laws regarding property, support, and inheritance apply the moment you are married!
Even if you decide that a premarital agreement is not right for your marriage, I find that it is still helpful for couples to ask themselves these questions. Often, people have expectations and assumptions about how their finances will work during marriage and upon divorce that they have not shared with the other person. A difficult conversation now is better than a big fight later.