Pre & Post Nuptials

This is an image of an attorney reviewing a pre-nuptial agreement with his client, which Mooney and Associates help clients understand and draft pre-nuptial agreements.Getting married is one of the most important things that a person will do in their lifetime. For every individual, it is a reflection of an emotional commitment, but it is also a legal status. Understanding your rights and obligations as a married person will help you fully appreciate the step you are about to take. Consulting with Mooney & Associates’ experienced family law attorneys may help you to decide if you need a pre-nuptial agreement.

Marriage is more than a romantic relationship. Marriage is a legal relationship which affords the couple many federal and state rights and benefits that are unavailable to single people. Although state laws vary, most states give married couples the following rights, privileges, and benefits: 1 ) joint federal and state income tax returns may offer advantageous tax rates and/or credits, 2 ) the ability to create a family partnership under federal tax laws which allows you to divide business income among family members which may lower the total tax on income, 3 ) the ability to receive your spouse’s and dependents’ Social Security, disability, unemployment, veterans pensions and public assistance benefits, 4 ) inheritance rights under state intestate succession laws, 5 ) the ability to sue a third person for wrongful death of your spouse and/or loss of consortium, 6 ) the right to receive family rates on insurance, 7 ) the right to make medical decisions about your spouse in the event of a disability, 8 ) the legal protection by asserting the marital communications privilege to avoid testifying against your spouse in a court proceeding and, 9 ) the ability, in some states, to sue a third party for offenses that interfere with the success of your marriage such as alienation of affection and criminal conversation (these are limited circumstances).

Although not romantic, premarital agreements, often called prenuptial or antenuptial agreements, are effective tools for defining the legal relationship between two people before marriage or even simply living together. The process of creating the agreement will clarify each person’s expectations and any assumptions or potential misunderstandings. Often, if the spouses enter the marriage with significant property, a prenuptial agreement can protect property from being considered marital property by the courts in the event of a divorce. The agreement creates a framework for handling money and property issues during the marriage and how to divide property if the relationship is eventually terminated.

Each state has its own laws about what can be included in a pre-marital agreement. Most states do not uphold agreements about child support and will not uphold an agreement which was created fraudulently, unfairly, or under duress. For example, some courts may consider requesting a spouse to sign the agreement five minutes prior to the wedding ceremony to be unfair.

Common Law Marriages

Couples who live together for a certain period of time may be entitled to the legal benefits and obligations of married couples if certain criteria is met. If they meet the common law marriage requirements, they must go through a formal divorce to end the relationship. A common law marriage is recognized when a heterosexual couple lives together for a “significant period of time.” No state defines the time period, but it is typically in the area of ten years. The couple must hold themselves out to the public as a married couple. Examples of this include sharing the same last name, filing joint tax returns, and referring to each other as husband or wife. Twelve states recognize common law marriage. These states include Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. In 2001, Pennsylvania ended the ability to have a common law marriage in Pennsylvania. Courts in Pennsylvania will not recognize that relationship as a marriage if it occurred after 2001.