The Legal Answer Book for Families
Emily Doskow, Attorney and Marcia Stewart,
February 2011, 1st Edition
At one time or another, the law will touch your family's life, and it's important that you have swift access to the most up-to-date information available so that your family's interests are protected. From the rights of kids, to inheritance rules, find everything you need to deal with everyday legal issues in The Legal Answer Book for Families.
With this legal reference, you'll get:
- a clear overview of the laws that affect personal relationships and families of all kinds
- quick, accurate answers to everyday legal questions
- discussions of various legal documents relevant to your family, from marriage licenses to parenting agreements
- a collection of Family Law Rules & Resources, with details for all 50 states
Easy-to-use, concise, and clear, The Legal Answer Book for Families is the perfect addition to any family's collection of practical reference books.
Emily Doskow is a practicing attorney and mediator who has worked with families in the Bay Area since 1989. She is the author of Nolo's Essential Guide to Divorce, the co-author of Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnership & Civil Unions and The Sharing Solution: How to Save Money, Simplify Your Life & Build Community, and the editor of many Nolo titles, including Divorce Without Court: A Guide to Mediation and Collaborative Divorce and the bestselling Neighbor Law: Fences, Trees Boundaries & Noise. She specializes in family law, including adoption, parentage issues, domestic partnership formation and dissolution, and divorce. She is a graduate of the Boalt Hall School of Law at the University of California at Berkeley.
Emily blogs on the ever-changing laws that affect gays and lesbians at Queer Justice: Nolo's LGBT Law Blog. She also blogs on marriage, adoption, parenting, divorce, child custody and child support at Nolo's Divorce, Custody & Family Law Blog, and on practical tips for sharing everything from lawnmowers and land to time and information at The Sharing Solution.
Marcia Stewart writes and edits Nolo books and forms on landlord-tenant law, real estate, and other consumer issues. She is the co-author of Nolo's Essential Guide to Buying Your First Home, Every Landlord's Legal Guide, First-Time Landlord, Every Tenant's Legal Guide, Leases and Rental Agreements, Renters' Rights, and The Legal Answer Book for Families. She has edited dozens of Nolo books, including The Women's Small Business Start-Up Kit.
Marcia is also an author on a popular landlord-tenant law site.
You can also find her on Google.
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- The Legal Rights and Benefits of Marriage
- Getting Married
- Changing Your Name After Marriage
- Sharing a Spouse’s Debts, Property, and Income
- How Marriage Affects Your Credit—and How to Avoid Problems
- Prenuptial Agreements
- Green Cards for Fiancés or Spouses
- Same-Sex Marriage
- Domestic Partnerships and Civil Unions
- Common Law Marriage
- Living Together
- Separation or Divorce
- Divorce and Family Court Proceedings
- Where Can You Get Divorced? State Residency Requirements
- Kinds of Divorce
- Will You Need a Lawyer?
- Divorce for Same-Sex Couples
- Property, Custody, and Support
- Estate Planning After Divorce
- Changing Your Name After Divorce
- Changing Your Child’s Name After Divorce
3. Child Custody
- Temporary Custody
- When Parents Decide on Custody: Parenting Agreements
- Physical and Legal Custody
- Visitation (Shared Parenting)
- Custody Decisions When Spouses Are in Different States
- How Courts Rule on Custody: The Best Interests of the Child
- Same-Sex Parents and Custody
- Mediating Child Custody and Visitation Disputes
- Changing Custody and Visitation Orders
- Custodial Interference
- Custody Issues Involving Unmarried Parents
- Surrogacy and Custody
4. Child Support
- Who Must Pay Child Support
- How Child Support Obligations Are Calculated
- How Long Child Support Lasts
- When a Parent Falls Behind on Child Support Payments
- Modifying Child Support Payments
- Child Support and Taxes
- Who Can Adopt
- The Birth Parents’ Consent
- Adoption Without Parental Consent
- Ways to Adopt
- Stepparent Adoptions
- Investigating Adoptive Parents: The Home Study
- Family Court Approval of Adoption
- International Adoptions
- Same-Sex Couples and Adoption
- Working With a Lawyer
- Adopted Children’s Right to Their Birth Records
- Baby’s First Legal Documents
- Is Your Baby a U.S. Citizen?
- Tax Breaks for Parents
- Keeping Children Safe
- Age of Consent to Have Sex
- Medical Care
- Children at Work
- Juvenile Crime
- When Does a Child Become an Adult?
7. Elder Care
- Getting the Right Documents in Place
- Conservatorships and Guardianships
- Medicare and Medicaid
- Long-Term Care Insurance
- Finding At-Home or Long-Term Residential Care
8. Wills & Estate Planning
- Preparing a Basic Will
- If You Die Without a Will
- Estate Planning and Blended Families
- Planning for Loved Ones With Special Needs
- Spouses’ and Children’s Right to Inherit
- Probate and How to Avoid It
- Estate and Inheritance Taxes
- Funeral Planning and Other Final Arrangements
- Keeping Your Estate Plan Up to Date
- Will You Need a Lawyer?
- Free or Low-Cost Legal Help
- Working With Lawyers
- How to Find a Good Lawyer
- How to Make Your First Meeting Successful
- Legal Fees
- How to Help Your Lawyer Do the Best Job
A. State Rules & Resources: Marriage, Divorce, Child Custody & Support
B. Adoption, Children, and Elder Care Resources
- Elder Care
The Legal Rights and Benefits of Marriage........................................... 5
Getting Married...................................................................................... 6
Who Can Get Married....................................................................... 6
Marriage Licenses and Certificates................................................... 7
Marriage Ceremonies........................................................................ 8
Changing Your Name After Marriage................................................... 9
Sharing a Spouse’s Debts, Property, and Income.............................. 11
Common Law Property States........................................................ 11
Community Property States............................................................ 12
How Marriage Affects Your Credit—and How to Avoid Problems..... 13
How One Spouse’s Credit Report Affects the Other’s.................... 13
Ways to Hold Credit......................................................................... 14
How to Improve a Spouse’s Bad Credit Record............................. 16
Prenuptial Agreements........................................................................ 17
What You Can Do With a Prenup.................................................... 17
What You Can’t Do With a Prenup.................................................. 18
Lawyers and Prenups...................................................................... 18
Green Cards for Fiancés or Spouses.................................................. 19
Eligibility for Fiancé and Marriage Visas......................................... 20
What’s Next in the Green Card Application Process?.................... 21
Same-Sex Marriage............................................................................ 22
States That Allow Same-Sex Marriages......................................... 22
Non-Recognition Issues................................................................... 23
Domestic Partnerships and Civil Unions............................................. 24
Marriage-Equivalent Relationships.................................................. 24
Limited Rights and Benefits............................................................. 25
Common Law Marriage....................................................................... 26
Living Together.................................................................................... 27
Preparing a Written Property Agreement........................................ 27
Inheriting From an Unmarried Partner............................................ 28
Making Medical Decisions for an Unmarried Partner..................... 29
Paternity, Custody, and Adoption.................................................... 29
Changing Your Name...................................................................... 29
Handling Housing Discrimination..................................................... 30
We think of marriage as a romantic institution, but it’s also a legal arrangement—a contract, really, with terms written by the state. Most people enter into that contract with no real idea of what those terms are. Most people planning to get married haven’t considered how a prenuptial agreement works, and most newlyweds (or not-so-newlyweds) don’t know what marriage means in terms of sharing a spouse’s property, income, and debts. Things get even murkier if your fiance is from another country or you’re in a same-sex relationship. Here are some of the basics about marriage and marriage-like relationships.
State Rules and Resources
The Marriage section of each state’s listing in Appendix A contains:
your state’s rules on marriage requirements, such as blood tests, waiting periods before marriage, and the like; same-sex marriages and domestic partnerships; common law marriages, and more, and
links to relevant government and nonprofit agencies, including courts that handle family matters.
The Legal Rights and Benefits of Marriage
Married couples receive numerous rights and benefits under both federal and state law. These include:
income tax benefits, such as the ability to transfer property between spouses with no tax consequences
inheritance rights to a deceased spouse’s property (see Chapter 8 for more on this)
government benefits, such as Social Security spousal retirement and death benefits
employment benefits, such as obtaining health insurance through your spouse’s employer and the right to take medical leave to care for a spouse who becomes ill
the right to make medical decisions if your spouse is incapacitated and to make decisions about body disposal and organ donation
financial support, including equitable property division and the right to seek alimony in a divorce
the ability to sponsor your spouse for a green card
the right to leave your spouse unlimited amounts of money not subject to the federal estate tax
protection from having to testify against your spouse in a court proceeding, and
consumer benefits, such as family rates for health, homeowners’, auto, and other types of insurance.
These are just some of the many benefits that come with marriage. Some of them—the ones that are governed by state law—also apply to same-sex couples who are legally married or are in domestic partnerships or civil unions in marriage-equivalent states. But because of the federal Defense of Marriage Act (DOMA), the federal rules and benefits relating to marriage don’t apply to same-sex couples.
Whether you’re planning a wedding in a church or another religious venue, at city hall, on the beach, or in Las Vegas, you must follow the same basic rules.
Who Can Get Married
Only opposite-sex couples may get married in all but six U.S. jurisdictions. The exceptions are discussed below, in “Same-Sex Marriage.”
Other rules vary slightly from state to state, but here are the essentials:
Each person must be at least the age of consent, which is usually 18. Younger people may be able to marry with their parents’ consent.
The intended spouses cannot be too closely related, such as siblings, aunts or uncles, or nieces or nephews or, in some states, first cousins.
Both people must have the mental capacity to understand what they are doing and its consequences.
The parties must be sober at the time of the marriage.
Neither spouse can be married to someone else.
The couple must get a marriage license.
You do not need to be a legal resident of a state to be married there, although there is usually a residency requirement for divorce.
Three’s a Crowd: Adultery, Bigamy, and Polygamy
Adultery, consensual sexual relations by a married person with someone other than the person’s spouse, is illegal in some states. In states that still allow fault grounds for divorce, adultery is always sufficient grounds for a divorce. In addition, some states factor in adultery when dividing property between divorcing spouses, and adultery may find its way into custody proceedings.
Bigamy means having two spouses at the same time; polygamy is having more than two. A marriage in which one of the parties is already legally married is bigamous and usually therefore void. In most states, if the bigamy was intentional, it is also a crime. Polygamy is a crime in all states.
Marriage Licenses and Certificates
A marriage license is the piece of paper that authorizes you to get married before the fact, while a marriage certificate is the document that proves you are married once the wedding ceremony is over. Following are the typical steps couples take to get married.
Get the license from the appropriate city or county official, such as the county clerk, in the state where you want to be married. Before you go into the county office, find out what documents you might need to bring—you’ll need some kind of identification, and you might also need to bring a birth certificate or divorce decree. Also, find out any requirements for witnesses. You might be able to make an appointment, which should cut down on standing-in-line time.
There’s a fee for the license (usually $25 to $100, depending on the state and county).
Licenses are good for 30 days to one year, depending on the state. If your license expires before you get married, you can apply for a new one.
State Rules and Resources
Where to find state license requirements. See your state page in Appendix A for license requirements, including blood tests (discussed below).
Have a ceremony. Depending on the state, there may be a short waiting period (usually just a few days) between getting a license and getting married.
Get the marriage certificate. Most states require both spouses, the person who officiated, and one or two witnesses to sign the marriage certificate; often this is done just after the ceremony. Then the person who performed the ceremony must file the certificate with the appropriate county office (for example, the county clerk’s office) where you live. A few weeks after getting the marriage certificate, the county sends the newlyweds a certified copy of the marriage certificate.
Will It Hurt to Get Married? Required Blood Tests
A few states require premarriage blood tests to check for sexually transmitted diseases (STDs) in both partners, and to see whether or not the bride to be has immunity to rubella, which can cause problems during pregnancy. The tests may also disclose the presence of genetic disorders, such as sickle-cell anemia or Tay-Sachs disease. No states require HIV tests, but some give out information about HIV and AIDS. In most states, blood tests aren’t required for people over 50 or if someone is pregnant or sterile.
If either partner tests positive for an STD, what then happens depends on the state. Some states may refuse to issue a marriage license.
A wedding ceremony may be nonreligious (civil) or religious. Civil ceremonies must be performed by a judge, justice of the peace, or court clerk who has legal authority to perform marriages, or by a person given temporary authority by a judge or court clerk. Religious ceremonies must be conducted by a clergy member—for example, a priest, minister, or rabbi. Some states have programs —like California’s “deputy for a day” system—that allow a nonclergy friend or relative to officiate at a wedding. There’s also the Universal Life Church, which will ordain anyone over the Internet for a fee, but has occasionally run into legal problems over the validity of the ordinations (and therefore the marriages performed by the Universal Life minister).
Usually, no special words are required as long as the spouses acknowledge their intention to marry each other—once you’ve included that, you can design whatever type of ceremony you want.
Who Keeps the Ring?
If an engagement ends, the former sweethearts may well disagree about who should get to keep the engagement ring.
Most courts consider the gift of an engagement ring a conditional gift, which isn’t final until the wedding actually takes place. If there’s no wedding, then the giver has the right to get the ring back.
But, some courts delve into the reasons the engagement was broken. So, a man who gave his fiancée a ring but then called off the wedding, especially if the bride to be stood ready to go ahead, might not get the ring back. But, if she precipitated the breakup by being unfaithful, a court might order her to return the ring.
Changing Your Name After Marriage
Though many people do so, no law requires you to change your name just because you get married.
A spouse who wants to take the other spouse’s name should promptly and consistently begin to use that name. A court procedure isn’t required, but it still takes some time and effort to change your name.
Some institutions will accept your marriage license as proof of your name change. However, others prefer to see a government-issued form of identification in your new name, so it’s a good idea to change your name with the Social Security Administration (SSA) first. Visit www.ssa.gov to download the required application form, or call SSA at 800-772-1213. Then mail or take the completed application—along with your marriage license and proof of your identity—to a local Social Security office. A few weeks later, you will receive your new Social Security card and you can begin to change your name with other institutions.
The big bureaucracies will take the longest to process your request, so, next, you’ll want to get the ball rolling with the local office of your state motor vehicle agency (usually called DMV), the U.S. passport office, and the tax agencies. Then you can dive into the long list of other businesses and organizations in your life—banks, insurance agencies, health care practitioners, the voter registration office, employers, clubs, utilities, publications, and so on. Some of these may require that you fill out forms and provide proof of your new name, but others may simply change your name over the phone at your request. Finally, don’t forget to update your personal documents, such as your will, living trust, or health care directive.
If this seems overwhelming, there are online businesses that can help. They collect your information and then provide already completed forms and letters for you to send to the SSA, DMV, passport office, banks, and utilities. This can save a good deal of time and may be worth the money. Just double-check to make sure they’re using the most current government forms and instructions, and ask about how they keep your private information secure.
Creating a New Name
If you and your spouse both want to take a new name, such as a hyphenated version of your last names or a brand-new name, you’ll need a court order. There are some restrictions on the new name you may choose:
You cannot choose a name with fraudulent intent—for example, to avoid paying debts, keep from getting sued, or get away with a crime.
Your new name cannot interfere with the rights of others—for example, you can’t take the name of a famous person with the intent to mislead.
You cannot use a name that would be intentionally confusing, such as a number or punctuation.
You cannot choose a name that is a racial slur.
You cannot choose a name that includes threatening or obscene words or words likely to incite violence.
For more information on changing your name, see www.nolo.com/legal-encyclopedia/name-change. If you live in California, you can use How to Change Your Name in California, by Lisa Sedano and Emily Doskow (Nolo). See www.nolo.com for a sample chapter and full table of contents.
Sharing a Spouse’s Debts, Property, and Income
How you will share and, if you divorce, divide the debts, property, and income that you and your spouse accrue after marriage depends mostly on where you live—specifically, whether your state follows community property rules or the common law (also known as equitable distribution) system of dealing with marital property. (Chapter 2 explains how these rules play out in divorce cases, and Chapter 8 explains their relevance for estate planning.)
Common Law Property States
The majority of states (all but the community property states listed below) follow “common law” property rules. In these states, debts incurred by one spouse in that spouse’s name alone are usually that spouse’s debts alone. However, a debt is owed by both spouses if it was:
for a family necessity, such as food or shelter for the family or tuition for the kids, or
jointly undertaken—for example, if both spouses’ names are on an account or on the title to a house.
All other debts, such as a business debt from one spouse’s business, are considered the separate debt of the owner spouse—and generally a creditor cannot go after the income or property of the other spouse to collect.
Property also generally belongs to the spouse who earns it or whose name is on the title document. All these are separate property:
income earned by one spouse, if it’s kept separate (if it’s mixed with the other spouse’s money, it can be nearly impossible to tell what belongs to whom)
property bought with one spouse’s separate income or funds, unless the title to the property (such as a car) is put in both spouses’ names
gifts and inheritances received by one spouse, and
property owned by one spouse before marriage (and kept separate).
Community Property States
In community property states, all of the income earned and property acquired, as well as all debts incurred, belong to both spouses together. (Together, the spouses are called “the community.”) Couples who prefer to keep some or all of their debts and income separate can do so by signing a prenuptial agreement (discussed below).
Community Property States
* In Alaska, spouses can sign an agreement making specific assets community property.
Most debts incurred by one spouse during the marriage are owed by both spouses, even if only one spouse signed the paperwork for the debt. Debts incurred before marriage, such as a student loan, don’t automatically become joint debts. However, a creditor can come after community property funds if the person who owes the debt fails to pay it. For example, if your spouse defaults on a student loan, the lender can try to collect from your joint accounts, even if you earned most of the money that’s in those accounts.
All income earned by either spouse during marriage, as well as property bought with that income, is community property, owned equally by the spouses. Even if the spouse who earns income keeps the money in a separate account, that money still belongs to the other spouse too. However, money and property that the spouses owned before marriage is considered separate property as long as it’s kept in the name of the person who owned it and not mixed up with the community money. It’s common, however, for spouses to mix their money together once they marry, making it nearly impossible to tell what might still be separate property.
Gifts and inheritances received by one spouse are the separate property of that spouse.
When one spouse owns a business that was started before the marriage, the business is considered that spouse’s separate property—but the income generated by the business is community property, and the community often acquires an interest in the business itself because of increases in its value or because the nonowner spouse contributed work or ideas to it.
How Marriage Affects Your Credit—and How to Avoid Problems
Many couples assume that a new, merged credit record is created when they marry. But, in fact, every credit record is tied to a single Social Security number. That means that your credit record, and any credit report you get, stays separate from your spouse’s.
Both credit records do, however:
list accounts that you and your spouse open jointly
list accounts with one of you named as cosigner, and
reflect the addition of a spouse to an existing account as either a joint account holder or an authorized user.
How One Spouse’s Credit Report Affects the Other’s
Lenders use credit reports and scores to decide whether to lend you money and how high an interest rate to charge. Some employers, landlords, and insurance companies also take into account an applicant’s credit history when making a decision.
When you and your spouse apply jointly for credit, a rental home, or insurance, both of your credit histories will be considered. If either one of you has unfavorable information in your credit report, it will hurt your chances of getting credit—or at least getting it at a good rate.
Ways to Hold Credit
When you’re married, you have four choices when it comes to applying for credit:
Make one spouse a cosigner for the other.
Make one spouse an authorized user but not a joint account holder.
Which one is best? It depends on the circumstances. Here are some factors to consider.
One way to avoid trouble is to apply for credit individually—that is, without your spouse. Of course, this strategy works only if your income and assets alone are substantial enough to qualify you for the credit. Qualifying on one income can be particularly difficult when applying for a large loan, such as a mortgage.
If you live in a community property state, as a practical matter it may be difficult to get a large loan on your own; lenders generally insist that couples apply together, because both spouses are responsible for the debt no matter who applies for it. If your spouse’s credit record is bad, the lender may be reluctant to lend to you in the belief that your spouse’s bad financial habits will make you less likely to be able to pay off the debt.
If you live in a common law state and you take out a loan in your own name using only your own credit record, you’re the only person responsible for paying it back. If you don’t pay the loan, you’re the only one whose credit will be damaged.
In either case, if your name is the only one that appears on the loan documents, only your credit will be damaged if you do not make payments.
If you and your spouse are joint account holders, you are both liable for the debt. If you open a new account, each of you is legally responsible for repaying the entire debt. (And remember, if you live in a community property state, you may be liable even if your name isn’t on the account.)
If one spouse adds the other to an existing account, the credit history—positive or negative—of the person with the existing account will affect that of the spouse who is added to the account. For example, if you have a positive credit history and add your spouse as a joint account holder to your existing account, your positive credit history will be factored into your spouse’s score. If you have poor credit and add your spouse, your spouse’s credit score will be harmed.
Adding your spouse to your account as a joint account holder will not affect your credit score unless your spouse uses much or all of your available credit.
Someone who cosigns for a debt becomes fully responsible for that debt if the primary borrower does not pay. Usually, lenders require a cosigner only if they’re concerned that the borrower won’t be able to pay. If your spouse has bad credit and a lender wants a cosigner, do it only if you are prepared to make payments if necessary.
Remember that if you are in a community property state, you are probably going to be liable for your spouse’s debts even if you are not a cosigner.
If one spouse has poor credit, an alternative to applying for credit jointly is to designate that spouse as an authorized user on the other spouse’s credit account. That way the less-qualified spouse can use the credit but is not liable for the debt (again, unless you’re in a community property state).
Making one spouse an authorized user will not affect the account holder’s credit score unless the authorized user uses much or all of the available credit—using up a large percentage of one’s available credit has a negative affect on a person’s credit rating. And, if the more solvent spouse decides later to remove the other from the account, it is much easier than if both were joint account holders.
If one spouse becomes an authorized user on the other’s account, the account will appear on the authorized user’s credit report. It may or may not affect his or her credit score. The latest version of the FICO scoring formula—the most widely used credit scoring system—does not factor authorized user status into scores. Older versions do, however, and many creditors still use them.
Level With Each Other Before Marriage
Experts recommend that couples review their credit reports together before getting married or taking on joint financial liabilities. If you’re already married, a review is still a good idea. You can get a yearly free copy of your credit report from each of the three credit reporting bureaus—Equifax, Experian, and TransUnion—at www.annualcreditreport.com.
Check the reports for derogatory information such as:
late payments and past-due amounts
collection accounts and charge-offs
unpaid student loans, and
Although bad credit can be the result of extenuating circumstances, such as extensive medical bills, it also can result from poor money management. If your spouse’s credit report reveals high balances, unpaid debts, or other negative history, you’d be well advised to keep your finances separate for the time being—until you’ve had a chance to discuss the reason for the credit issues and observe your spouse’s financial habits. That means not opening new accounts jointly, not adding your partner to your existing accounts or being added to your partner’s accounts, and not sharing a checking account.
How to Improve a Spouse’s Bad Credit Record
Bad credit is not an insurmountable problem, but it can take time to turn things around. If you have excellent credit, you can help your spouse by:
adding your spouse to one or more of your existing accounts (do this only if you are convinced your spouse will not charge up your balance)
helping to pay down your spouse’s balances, particularly if they are closer to the credit limit than yours are
transferring your spouse’s debt to one of your lower-interest accounts
taking over bill paying if your spouse has spending or money management problems
setting financial goals together, and
checking your credit reports annually.
More about maintaining good credit and repairing bad credit. See Credit Repair, by Robin Leonard (Nolo). Also, the Bankruptcy section of Nolo.com includes lots of useful articles on debt and credit, including the basics of credit reports, and the Personal Finance & Retirement section includes articles on budgeting and money management.
A prenuptial or premarital agreement (“prenup”) is a written contract created by a couple in anticipation of getting married, for the purpose of defining each person’s financial rights and responsibilities. Typically, a prenup lists each person’s property and debts and specifies what each person’s property rights will be if the couple divorces. Without a prenup, state law controls how property is divided at divorce.
What You Can Do With a Prenup
Prenups have commonly been used by very wealthy people to protect assets, but couples of more modest means are increasingly turning to them. Prenups can be used to:
keep finances separate and clarify financial rights and responsibilities during marriage by stating who owns income earned and property acquired during marriage
clarify ownership of and interests in a spouse’s business
create a plan for how property will be divided in the event of divorce
decide on (in most states) alimony or spousal support in case of divorce
state intentions regarding an estate plan and waive inheritance rights
get protection from the other spouse’s debts, and
reach other financial agreements, such as how you will buy a house together, start a business, put each other through college, or set aside money for savings.
What You Can’t Do With a Prenup
While state laws vary, in general, you cannot use a prenup to:
restrict child support, custody, or visitation rights
encourage divorce (by appearing to offer a financial incentive for one spouse to end the marriage), or
make rules about nonfinancial matters, such as having and raising children, or how you’ll share household chores.
In a few states, you can’t use a prenup to give up the right to alimony.
Lawyers and Prenups
To get started, an engaged couple should evaluate their circumstances, agree on what they want their prenuptial agreement to cover, and even start writing a draft of it. Most states require (or least suggest) that each person have an independent lawyer review the agreement, and it’s a good idea whether your state requires it or not. Having two independent lawyers involved will help you craft a lasting agreement that both of you understand, and will help avoid court fights should you end up in an acrimonious divorce. In particular, if one spouse has much less money or assets than the other, the lower-earning spouse must have an attorney; otherwise, if there’s ever a lawsuit over the prenup, the court may set it aside because the weaker party didn’t have good advice.
If you make a prenup, be sure to follow through by making your estate plan. For example, if you are using a prenup to waive inheritance rights, make sure that your will and other estate planning documents actually transfer property as you intend. The prenup itself isn’t enough to make sure your wishes are carried out.
Information about finding and working with an attorney is in Chapter 9.
Help with prenuptial agreements. Before you visit a lawyer, you can decide essential terms and begin drafting your own prenuptial agreement, using Nolo’s Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner and Shae Irving. This book includes a summary of each state’s prenuptial laws. See www.nolo.com for a sample chapter and full table of contents.
Green Cards for Fiancés or Spouses
If you are a U.S. citizen or permanent resident, and you are engaged or married to a citizen of another country, your fiancé or spouse may be eligible for a green card. However, many people believe, wrongly, that they can just bring their fiancé or spouse to the United States or (if the immigrant is already here) to an office of U.S. Citizenship and Immigration Services (USCIS) and the immigrant will be given an instant green card or even U.S. citizenship—a belief that has led to sad cases of people being sent right home again.
The reality is that your fiancé or spouse will have to go through a multi-step application process. It’s your job to start the process, by submitting to USCIS either a fiancé visa petition (which can be used whether you are married or engaged) or an immigrant visa petition.
A fiancé or spouse who is currently overseas won’t be allowed to enter the United States until both the visa petition and subsequent applications have been approved.
If your fiancé or spouse is already in the United States, the process gets even more complicated. A very recent entry by the immigrant on a tourist visa with the intention of applying for a green card could be considered visa fraud and disqualify your spouse for a green card. Completing the application process at a USCIS office within the United States is not permitted for some immigrants, depending on whether you (the petitioning spouse) are a U.S. citizen and whether your immigrant spouse entered the United States with a visa or illegally. That leads to further problems, because if your spouse has no choice but to leave the United States to complete the application process, but has lived in the United States illegally, your spouse may face a penalty and be forced to spend years outside the United States before returning.
Even if everything goes right, be prepared for a long wait. Every type of visa application involves several stages, including application forms, a medical examination, fingerprinting, various approvals, and an interview with a U.S. government official.
If you’re not yet a U.S. citizen. If you have U.S. permanent residence (a green card), you cannot bring your fiancé to the United States until you’re married. Even then, your spouse will have to spend some years on a waiting list before entering the country. Work on getting U.S. citizenship to speed things up.
Eligibility for Fiancé and Marriage Visas
The basic requirements for the fiancé visa and the marriage visa are different.
To qualify for a fiancé visa, the immigrant must:
intend to marry a U.S. citizen of the opposite sex
have met the citizen in person within the last two years, and
be legally able to marry.
Also, the immigrant must be living in another country—someone who is already in the United States isn’t eligible for a fiancé visa.
As part of the fiancé visa application process, you’ll have to prove your intention to marry. That means providing a selection of documents, such as copies of your love letters and emails, phone bills, and wedding ceremony contracts for services such as catering and flowers. You’ll also have to prove that you’ve met within the last two years, by submitting copies of plane tickets, hotel bills, or any other relevant documents.
Marriage-Based Visas (Green Cards)
To be eligible for an immigrant visa or a green card based on marriage, the immigrant must be legally married (it doesn’t matter in what country) to a U.S. citizen or permanent resident of the opposite sex. Neither the immigrant nor the U.S. spouse can be married to someone else.
In the application process, you’ll have to prove all of these things. Legal marriage is usually the easiest to prove, simply by providing a copy of your marriage certificate. Do your best to get your marriage certificate from the most official source possible, such as a government office. Unless it’s all that’s available in the country where you were married, USCIS will reject a certificate from a ship’s captain or another nongovernmental place.
A binational marriage must be the real thing, not just a sham to get a green card. You’ll have to prove that your marriage is for real by providing copies of documents such as joint bank statements, children’s birth certificates, photos of the wedding and honeymoon, correspondence that demonstrates an intimate relationship, and more. Also, near the end of the application process, you’ll have to attend an interview, either at an overseas U.S. consulate or (in the rare case where the immigrant is in the United States and eligible to complete the green card application process here) at a USCIS office. Similar to what you’ve seen in the movies, an interviewing officer who suspects fraud may separate you and your spouse and ask you detailed personal questions about your marriage and your life together.
To qualify for any type of visa, an immigrant must show that he or she is not “inadmissible.” A person who can’t show a means of support in the United States outside of public assistance, who has a criminal record or associations with a terrorist organization, who has committed visa fraud or repeatedly entered the United States illegally and been removed, or who has a communicable disease like tuberculosis would not be admitted to the United States. Inadmissibility is a major stumbling block for many immigrants, though waivers are available in some cases.
What’s Next in the Green Card Application Process?
How and where an immigrant actually applies for a green card depends on a number of factors. These can include who the immigrant is marrying, whether or not the immigrant is in the United States already, and, if so, whether the person got here legally. In some cases, particularly where inadmissibility may be an issue, hiring an experienced immigration attorney is well worth the cost.
More on fiancé and marriage visas.
The Immigration section of www.nolo.com includes many useful articles on U.S. green cards, visas, and citizenship, including eligibility and sponsorship requirements, interviews, exams, and bringing your spouse to the United States.
Fiancé & Marriage Visas: A Couple’s Guide to U.S. Immigration, by Ilona Bray (Nolo), can help you complete the application forms, assemble the appropriate documents, and have a successful interview. See www.nolo.com for a sample chapter and full table of contents.
In the last two decades, the legal landscape for same-sex couples has changed in extraordinary ways. Legal marriage is now available to any same-sex couple willing to travel to a marriage equality state—but the marriage won’t be recognized by the federal government or, in some cases, by the couple’s home state. In short, for same-sex couples, marriage is a lot more complicated than just saying “I do.”
States That Allow Same-Sex Marriages
Five states and the District of Columbia now allow a same-sex couple to get married and enjoy all of the benefits of marriage under their laws.
States Where Same-Sex Couples Can Marry
District of Columbia
While these marriages are legal for all purposes in the state where they are entered into, the federal government does not recognize any same-sex marriages, and many states refuse such recognition as well (see “Non-Recognition Issues,” below).
All of the states that allow same-sex marriage recognize same-sex marriages—as well as civil unions and domestic partnerships—performed elsewhere. In addition, although they don’t allow same-sex marriage or an equivalent themselves, both New York and Maryland do recognize same-sex marriages performed elsewhere. In these states, as long as you were legally married in a state or country that allows same-sex marriage, you will be treated like any other married couple: You can file a joint state tax return, provide health and retirement benefits for your spouse if you work for the state government, and enjoy numerous other rights that come with marriage under state laws, including divorce, child custody, property division, family leave benefits, and medical rights such as hospital visitation.
Same-Sex Marriage in California
The law is particularly unsettled in California. Same-sex couples cannot currently marry in California, even though a federal judge ruled in August 2010 that the state’s ban on same-sex marriages violates the federal constitution. That ruling is currently being appealed to a federal court of appeals and may well end up in the U.S. Supreme Court.
In May of 2008, the California Supreme Court ruled that limiting marriage to persons of the opposite sex violates the California Constitution. Same-sex marriage became legal for a few months—until November of 2008, when voters passed Proposition 8, which once again limited marriage in California to opposite-sex couples. Between May and November, approximately 18,000 same-sex couples wed in California. Under California law, they are still legally married. The state also recognizes the marriages of same-sex couples who wed in other states and countries that allow it.
The federal government does not recognize the marriages of same-sex couples who wed in states or in foreign countries (Canada and England, for example) where such marriages are legal and valid. Under the Federal Defense of Marriage Act (DOMA), these couples receive none of the marriage benefits provided by federal law. Forty states have passed their own DOMA statutes or constitutional amendments expressly limiting marriage to a man and a woman, and none of those DOMA states (except California) recognize same-sex marriages, although some of them do recognize domestic partnerships or civil unions.
This means that same-sex couples who marry or register as domestic partners in states that offer these options cannot take advantage of the hundreds of federal laws that confer rights, benefits, and protections to married heterosexual couples—such as Social Security spousal survivor and retirement benefits, the ability to file joint tax returns, and special estate planning benefits. They can take advantage only of state-recognized rights and responsibilities of marriage, such as joint tax filing and the ability to inherit from a spouse even without a will.
Non-recognition also means that a couple can travel to a marriage equality state, get legally married, and then return home to their non-recognition state and find that their marriage has very little meaning where they live. In at least two states, judges have refused to grant divorces to married same-sex couples because the state where the couple sought the divorce did not recognize the marriage itself. This leaves the couple in the position of having to either stay married or move to a state where the marriage is recognized and establish residency (which can take as long as six months to a year) in order to file for divorce there.
Domestic Partnerships and Civil Unions
A number of states have established for same-sex couples legal relationships that are the functional equivalent of marriage but are called something else—either domestic partnerships or civil unions. The term “domestic partners” is somewhat confusing, because it is used to describe legal marriage-equivalent relationships; legal relationships that only provide partial marital rights; and unmarried couples, of the same or opposite sex, who live together in a family relationship, and in some cases are recognized by local governments, businesses, colleges, and universities.
California, Nevada, Oregon, and Washington State offer domestic partnership status that is the functional equivalent of marriage; New Jersey and Illinois do the same but call the relationship a civil union. Some of these states limit domestic partnership registration to same-sex couples, but some include opposite-sex couples in which one partner is 62 or older. (This is to avoid affecting Social Security benefits, which can sometimes be reduced when the person receiving benefits gets married.)
No license is required to enter a domestic partnership or civil union—usually it’s just a matter of filing a notarized form with a state office like the secretary of state. Ending a domestic partnership or civil union in a marriage-equivalent state usually requires that the partners go through the same court procedures that opposite-sex couples must use. There may be an abbreviated process for couples who haven’t been registered for very long and don’t own any property, but not many people qualify for that. Couples living in a non-recognition state generally need some legal advice on how to terminate their domestic partnership or civil union. (Chapter 2, “Divorce,” provides more detail on ending a same-sex marriage or domestic partnership.)
Limited Rights and Benefits
A few states offer some limited rights and benefits to same-sex couples who register. Colorado, Hawaii, Maine, and Wisconsin all provide for some form of legal relationship, but the rights that come along with the relationship are a far cry from the marital rights provided in the marriage equality and marriage equivalent states.
In addition to these state-level rights and benefits, some public and private entities may offer domestic partners benefits such as:
health, dental, and vision insurance
sick and bereavement leave
accident and life insurance
parental leave (for a child you coparent)
housing rights and tuition reduction (at universities), and
use of recreational facilities.
Helpful resources on same-sex marriage, domestic partnerships, and civil unions.
For details on laws in your state, including municipalities and other entities offering domestic partnership benefits, see the “In Your State” section of www.lambdalegal.org, or call 866-542-8336. Also, see the National Center for Lesbian Rights (www.nclrights.org, phone 800-528-6257), a national lesbian and gay legal organization that provides education, resources, and support.
Making It Legal: A Guide to Same-Sex Marriage, Domestic Partnerships & Civil Unions, by Frederick Hertz with Emily Doskow, fully explains same-sex relationship laws, reviews key issues that influence the decision to marry, and offers practical guidance. You can see a sample chapter and the full table of contents at www.nolo.com.
The Lesbian and Gay Couples section of www.nolo.com (under Divorce & Family Law) contains a wide range of articles that discuss issues affecting gay and lesbian couples.
Chapter 9 of this book provides advice on finding and working with attorneys. You’ll want to see an experienced lawyer for advice about your marriage or domestic partnership (especially if you got married in a state that recognizes same-sex marriages but live in a state that doesn’t), advice on legally ending your relationship, or other legal questions.
Common Law Marriage
In 15 states and the District of Columbia, heterosexual couples can become legally married without a license or ceremony (see the Marriage section of your state page in Appendix A for details). This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. To have a valid common law marriage (in states that recognize it), the couple must do all of the following:
live together for a significant period of time (not defined in any state)
hold themselves out as a married couple—typically this means using the same last name, referring to the other as “my husband” or “my wife,” and filing a joint tax return, and
intend to be married.
Common law marriages are not that common—they’re actually fairly unusual. When one exists, the spouses receive the same legal treatment given to formally married couples, including the requirement that they go through a legal divorce to end the marriage.
Many laws control the property ownership rights of married couples. In most states, no such laws exist for the many unmarried couples who live together, except for the handful of states with marriage-like domestic partnerships or civil unions. If you and your partner (gay or straight) are unmarried, you must take steps to protect your relationship and define your property rights. You will also face special concerns if you are raising children together.
“Palimony” is a word coined by journalists—not lawyers—to describe the division of property or the alimony-like support paid by one unmarried partner to the other after a breakup. Members of unmarried couples are not legally entitled to such payments unless they have an agreement. In the famous 1976 case of Marvin v. Marvin, the California Supreme Court ruled that a person who cohabitated and later sued for support could argue that an implied contract existed between the partners. To avoid argument, it’s best to have a written agreement about any payments to be made if the relationship ends.
Preparing a Written Property Agreement
If you want to legally establish how you will own property during your relationship, as well as what will happen if you separate or if one of you dies, you must put your intentions, desires, and expectations in writing. Your agreement will be called a “nonmarital agreement” or “living together contract.” (Or, if you are planning for what happens when you die, you’ll need to make a will.)
Almost all states now enforce written contracts between unmarried partners. And the longer you live together, the more important it is to write a contract making it clear who owns what. Otherwise, you might face a serious (and potentially expensive) battle if you split up and can’t agree on how to divide what you’ve acquired.
A written property agreement is particularly important if you buy a house together. It should cover all of the following:
How you will take title to the property. Your options vary from state to state. Many states let you hold title as “joint tenants with rights of survivorship,” meaning that when one partner dies, the other automatically inherits the whole house. Or you might want to hold title as “tenants in common,” so that each owner can choose who gets that partner’s share by making a will or trust.
How much of the house each partner owns. If you’re joint tenants, then in most states, you must own equal shares.
What happens to the house if you break up. Will one of you buy out the other, or will you sell the house and divide the proceeds? If you don’t agree on who can buy the other out, how will you decide who gets first choice?
How Marriage Affects a Living Together Agreement
If you and a longtime partner make a property agreement while you are unmarried, will it be enforceable after you get married? Probably not. To be enforceable, premarital contracts must be made in contemplation of marriage. So, unless your living together contract is made shortly before your marriage, when you both plan to be married, a court will disregard it. It’s best to review your contract and rewrite it as a premarital agreement.
Inheriting From an Unmarried Partner
If your unmarried partner dies, will you inherit? Not automatically. Your rights depend on whether your late partner made a will, trust, joint tenancy agreement, or some other estate planning document to leave property to you. (See Chapter 8 for more on this.)
Making Medical Decisions for an Unmarried Partner
If you are injured or incapacitated, your partner will not be allowed to make medical or financial decisions on your behalf unless you have executed the appropriate documents. To give your partner the right to make medical decisions for you, you must sign a form called a “durable power of attorney” (sometimes included in a “health care directive”). Without a durable power of attorney, the fate of a severely ill or injured person could be in the hands of a biological relative who won’t honor the wishes of the ill or injured person. It is far better to prepare the necessary paperwork so the loving and knowing partner will be the decision maker. If you want your partner to be able to make financial decisions for you—when you become incapacitated or even for a short time because you’re out of the country or otherwise unavailable—you need to execute another type of power of attorney, one that covers financial matters. (For more information about durable powers of attorney, see Chapter 7.)
Paternity, Custody, and Adoption
Unmarried same-sex couples who have children together need to take special steps when it comes to children. Unmarried heterosexual couples, on the other hand, aren’t generally treated any differently than married straight couples from a legal perspective. Later chapters explain how you can head off problems over custody (covered in Chapter 3) and adoption (see Chapter 5).
Changing Your Name
Some unmarried couples want to share a last name. If you don’t have a marriage certificate, you will need a court order (this is usually fairly simple) to change your name. For more information, see www.nolo.com/legal-encyclopedia/name-change.
Handling Housing Discrimination
In most states, landlords may legally refuse to rent to an unmarried couple. About 20 states ban discrimination on the basis of marital status, and most of them protect married couples only. Federal law does not protect unmarried couples from housing discrimination. Housing discrimination based on sexual orientation, however, is prohibited in some states and cities. Many of these laws also protect unmarried heterosexual couples.
Where Housing Discrimination Based on Sexual Orientation Is Prohibited
District of Columbia
For unmarried couples.
Living Together: A Legal Guide for Unmarried Couples, by Ralph Warner, Toni Ihara, & Frederick Hertz (Nolo), explains the legal rules that apply to unmarried couples and includes sample contracts about jointly owned property. See www.nolo.com for a sample chapter and full table of contents.
The U.S. Department of Housing and Urban Development (HUD), at www.hud.gov, offers advice on fighting housing discrimination.
A Legal Guide for Lesbian and Gay Couples, by Denis Clifford, Frederick Hertz, and Emily Doskow (Nolo), sets out the law on everything from medical and financial issues to parenting and estate planning and contains useful sample agreements. See www.nolo.com for a sample chapter and full table of contents.
The Alternatives to Marriage Project, www.unmarried.org, is a national organization that provides resources, support, and advocacy for unmarried people living together.
The Renters’ & Tenants’ Rights section of www.nolo.com (under Real Estate & Rental Property) has many useful articles about housing.
The National Center for Lesbian Rights (www.nclrights.org, phone 800-528-6257) is a national lesbian and gay legal organization that provides education, resources, and support.