Consequences of, and Incidents of, Marriage

There are numerous legal rights and obligations when someone marries, some of which can be changed by a premarital agreement (or a separation agreement). Below is a brief (believe it or not) list of the rights and responsibilities, known as the incidents of marriage, that are different for unmarried partners:

Adoption (both spouses must join the petition to adopt)

Alimony and spousal support

Bankruptcy rights

Criminal law (duty to support, etc.)

Equitable distribution of marital assets and debts

“Family” rates (auto insurance, gym memberships, health insurance, etc.)

Health insurance rights

Immigration rights

Inheritance rights

Judgments for money owed

Marital privilege (testifying in court)

Military benefits and rights

Name changes

Next of kin designation (hospital, prison, etc.)

Paternity and birth certificates of children

Pension and other retirement benefits

Social security benefits

Survivorship rights

Taxes (filing status, deductions, exclusions, innocent spouse, etc.)

Torts, which are lawsuits for civil wrongs (alienation of affection, criminal conversation, loss of consortium, etc.)

Vital Records (right to personal records such as death certificates, birth certificates, etc.)

Welfare and public benefits

Wiretap Act exceptions allowing recording in some states

Zoning (number of unmarried or unrelated people in the residence)

Post-nuptial Agreements

Marital contracts are signed by parties who choose to clarify what they desire to happen in various situations, instead of having issues decided in court.  The requirements for marital contracts are quite different.  Prenuptial or premarital agreements are subject to the Uniform Premarital Agreement Act, and only becomes effective if and when the parties marry. These agreements cannot address any future children and there are some restrictions about alimony.

On the other hand, separation agreements can generally only be signed after the parties separate, meaning they no longer live together. Separation agreements are made between people whose positions are clearly adversarial. These agreements are very broad and can include agreements on almost any subject matter, including alimony, equitable distribution and all matters related to children.

In between premarital agreements and separation agreements, there are post-nuptial agreements, which may be signed after marriage but while the two spouses live together. Post-nuptial agreements are still somewhat exotic, and they are more limited than a separation agreement. They cannot cover all of the subjects found in separation agreements. This is because courts have a public policy concern that these post-nuptial agreements interfere with the marital relationship while the spouses are in the same home. In those cases, the fear is that one spouse will manipulate the other so he or she will stay in the relationship. Contrast this with the notion that people who have already separated are on notice not to trust the other who is now not looking out for the person’s best interest.


Prenuptial Agreements (Also Known as Premarital Agreements)

An engagement is a happy occasion. In the excitement about their wedding, people sometimes overlook the fact that marriage automatically changes your legal rights. These rights include inheritance rights, marital asset and debt rights, and alimony. In legal terms, these rights and responsibilities are called incidents of marriage, meaning the burdens or benefits of marriage.

What is a Pre-nuptial Agreement?

A pre-marital agreement, sometimes called a pre-nuptial agreement, is a contract between two unmarried individuals. It only becomes effective if there is a marriage. Otherwise, these contracts have no legal effect. Some people think it is unpleasant to discuss the subject of pre-marital agreements. But it is worse to wait, perhaps decades, to find out your gamble to roll the dice and see if you can avoid dealing with a pre-nup was unsuccessful? I tell clients a pre-marital agreement is like home owners insurance; you hope that you never need it, but after a fire (or in this case divorce/death) burns your house to the ground, you sure are glad you have it.

What Topics Does a Pre-nup Cover?

The statute[1] clearly says “[t]he right of a child to support may not be adversely affected.” Otherwise, couples are free to contract about alimony, property and debt, and even inheritance rights. These agreements are popular among people who have been married before, or people who have property, such as a home, when they get married. When people marry later in life, they usually want to protect their adult children in the event of their death or divorce.

A pre-nup can be as simple or complex as is necessary. These agreements are not usually boiler plate documents. Sometimes people merely want to clearly identify their separate property before they marry. Other times, someone may have substantial debts, such as huge on-going medical bills, and want to shield the other person from them. A common circumstance is when a wealthy person (sometimes at the request of his or her parents) marrying a person of modest means.

Why Have a Pre-nup?

Protecting property (i.e., their separate assets) is the most common reason for having a pre-nuptial agreement. Property you bring to the marriage may grow in value, such as retirement investments or a pension. Do you understand the impact of marriage is on these assets or debts?  Most people don’t realize it, but property may be mixed, meaning separate property someone brings to the marriage may become partly marital. No widow or widower wants to own property with their spouse, only to find out after his or her death, the property is now owned 50/50 with the adult children of the late husband or wife. This can be an unintended consequence of failing to properly plan events before marriage.

Estate rights may also be included in a pre-nup. If someone does not have a will, the state will determine who inherits the estate, and in what percentage. Having a will generally gives you the flexibility to name anyone you choose to inherit from, but without a prenuptial agreement, you cannot “disinherit” your spouse. Otherwise, without a pre-nuptial agreement, by law, a spouse cannot be ignored or left out. A pre-nup can set out the wishes of the parties in the event of their deaths, in any way they choose.

Alimony is another reason pre-marital agreements can be useful. There is no formula or guideline for determining the proper award of alimony a dependent spouse will receive in North Carolina. However, parties may choose to do so in a pre-marital agreement. For example, the amount of alimony may be awarded based on the number of years they remain married.

One spouse may want to avoid alimony altogether, and the other may want to be sure it is specifically included. For example, if you are young and anticipate being a stay at home mother (or father), think about the financial impact that would have on you.  After being out of the workforce for what may be years, it may be difficult to get back into the workforce, especially if you separated suddenly, or your spouse leaves you. Every year a spouse is not employed outside the home is another year he or she is not contributing to their social security retirement. One spouse may be giving up a career to move frequently if the other spouse is in the military or has other employment that requires frequent relocation. Think of your life 20 or 25 years from now, when you don’t necessarily have your whole life ahead of you.

The BIG Mistake

The biggest mistake I see people make is making this decision to have a pre-marital agreement prepared largely as an afterthought. It seems some people spend more time choosing the flowers for the wedding ceremony than thinking about their rights and how they are impacted the day that wedding ceremony takes place. This type of contract will have a major impact on your life, not only if you divorce or die, but even for a spouse who wants to get a mortgage in his or her sole name, without the other spouse’s signature, for instance.

Waiting until a few weeks or even days before the marriage to think about having a pre-marital agreement is a very bad idea. Don’t wait until the last minute to begin the process. Doing so tends to create a hurried and very basic document, which doesn’t include many details. A well drafted agreement that a client has plenty of time to review and ask questions about usually means people are free to enjoy the wedding without bickering about the terms of the agreement, in the midst of being distracted by hurried last-minute wedding planning. Remember, it is your life and failing to properly plan what happens if you separate, divorce or your spouse dies can lead to disastrous consequences. It is much better to consider these things now instead of waiting until a worst case scenario occurs. You will have to deal with the worst case scenario either way. Some pre-nups are just as complicated as separation agreements, and can easily take weeks or longer to prepare and negotiate.

Can We Share an Attorney?

No. Because fiancés are in love and are sharing a joyous occasion, it is difficult to explain that the matters in the agreement create a conflict of interest. An attorney may only represent one person. Usually, what is in your best interest is not in the best interest of the other person, who may be losing assets or alimony in the process. A good attorney is not looking just at the current situation, but years or decades away. In fact, that is the very reason you are entering into a pre-marital agreement, to avoid arguments with each other and family members in the event of divorce or death. It is better for the other person to have his or her own attorney instead of going through the process without an attorney.

Rights of Unmarried Couples

Unmarried Couples

For a variety of reasons, many people in romantic relationships do not get married. Instead, they may live together, purchase a home together, share their finances, and place debts or title to assets in their joint names. Many retired, divorced, or widowed individuals remain unmarried because they do not want to lose retirement or military benefits. Not only does marriage impact numerous rights and responsibilities, it creates various legal relationships, which most people don’t realize.

What About Property?

North Carolina does not provide for common law marriage, but will recognize one if it was valid in a state that does recognize common law marriage. If unmarried co-owners of a residence separate, the residence is not subject to equitable distribution, the process by which the court divides property between married people. Instead, there are different, and frequently more expensive, court alternatives that must be utilized if the parties are unable to agree on matters such as possession of the residence, who must pay the mortgage payments and what to do if only one party wants to sell the residence. Real property ownership is completely different for unmarried property owners, and deeds must be drafted accordingly to create the desired result.  Similarly, unmarried partners who place both partners’ names on other assets, such as vehicle titles and bank accounts, or on loans or credit card accounts, face a different procedure for resolving disputes.

Your Children

When parties have a child together, there are many rights and obligations both parents have to care for and support their child. There are different rights and obligations for parents when they are married. North Carolina law concerning a child’s paternity, birth certificate, adoption, and legitimation can be very complex and appear somewhat arbitrary when comparing the rights between married and unmarried parents. The rights of mothers and fathers also vary until certain legal events take place. Sometimes, failure to assert parental rights as an unmarried parent can lead to the loss of those rights, in the practical sense of the word, if not literally.

Your Legal Affairs and Estate Planning

Unmarried partners do not have the same inheritance rights as spouses, so estate planning is important, especially when parties live together but only one party owns the residence.  There are numerous other estate planning and end of life considerations that must be taken into account, such as deciding things such as who will make medical decisions or manage finances if one partner is no longer able to do so. Presently, only spouses may be covered on health insurance policies and/or receive social security benefits in the event of a death (or retirement in some circumstances).

What is a Legal Separation in North Carolina?

In our state, the term “legally separated” is a term of art used by attorneys, and misused by many non-attorneys. This legal separation is a decree made by a judge after a special trial based on marital fault. The court enters an official decree, stating that you or your spouse was wronged and declaring you separated. Why do all of this to separate? Because people are correctly reluctant to move out of the family home for fear of committing abandonment. Marital misconduct (marital fault) can easily cause a great deal of harm to a spouse’s case. This process of a judge declaring a person to be legally separated is a rare event indeed, but it is still alive and well in our state.  In legal terms, this process of declaring people to be separated, but still married to each other, is called a divorce from bed and board.

What people usually mean is a “separation” that will allow them to get divorced after a year of separation, Two main things are required to be separated for purposes of a divorce. First, the husband and wife must not live together in the same residence for at least one year. Living in the same residence in different parts of the house is not adequate. Second, either the husband or the wife must intend for the separation to be permanent. Note there is no requirement that both intend the separation to be permanent; only one person must. If they are living separately but neither intends to be separated, such as those separated by military service or extensive travel, they are not separated for the purpose of getting divorced.  There is no legal requirement for any documents to be written or signed for people to be separated.  The fact that people live apart, and one of them intends the separation to be permanent, is sufficient to be separated for the purpose of filing for a divorce after one year has passed.

Clients sometimes ask me if they can agree to say they have been separated for a whole year, when they have only been separated a few months. The answer is always NO. Alleging untruthful things in a divorce complaint (the document that generates the lawsuit) constitutes the crime of perjury, whether one person commits perjury or both do, regardless of whether you agree to do so. The process of a judge entering a divorce based on one year of separation is called an absolute divorce.  Once this type of divorce is entered, each person is legally free to remarry if he or she chooses to do so.



Common Law Marriage: Did You Accidentally Get Married?

Common law marriages are based on an agreement between the parties, without any paperwork or a formal ceremony performed by a person vested with authority to perform marriages. In my practice, I have met a number of people who believed they were “common law married” in North Carolina. Some people have the mistaken notion that if a couple lives together for some period of time, then the relationship is magically transformed into a legally valid marriage. Each state has laws that list the specific requirements of a marriage.

North Carolina is one of many states that does not permit common law marriage. A couple might have lived together for many years and even held themselves out as “husband and wife” but unless they have undergone the legal requirements of marriage, they were not legally married in this state. No doubt this is great news to some clients, who thought they “accidentally” got married, but bad news to others. And speaking of accidental marriage, much to the dismay of some of those same people, there is no accidental divorce (i.e., common law divorce).

What About Common Law Marriage From Other States?

There are U.S. states that recognize common law marriage. Some of those states are Western states that historically had to make a “do it yourself” marriage available to residents because there was such a small population that ministers or magistrates did not live in a town or close to one. Most of the settlers living in the Western U.S. did not want to “live in sin” without the benefit of marriage, so common law marriage in the United States was born. If a couple is validly married in another state that recognizes common law marriage, only then will North Carolina give their marriage decree full faith and credit, recognizing it as a valid marriage.