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The Marriage Test: Realities of the Unwritten Contract

Love should not blind a couple to the realities of their legal status of husband and wife, for they are bound by an unwritten contract of marriage governed by the laws of the federal government, the state they live in and the decisions of the judiciary. Every bride and groom must learn that the state is at the altar with them.

You would never sign a contract without reading it or seeking an attorney's advice. Those about to marry, however, have never been told how important the fine print is. No options are offered, no negotiation allowed, and no warranties extended, express or implied, when you say "I do."
If all the terms were fully disclosed, who knows if you would sign on the dotted line without further negotiations?

Take the test below to evaluate your knowledge of the marriage contract.

  • Do you know how state law controls the property you acquire during your marriage?
  • Do you know what interest the state says your spouse has in the income-producing (i.e. interests, dividends, rents) assets you owned before marriage?
  • If your spouse died without a will, do you know if your state would require you to share your marital estate with his parents or siblings?
  • Do you know how debts or obligations your spouse has before marriage can impact your pocketbook after marriage?
  • Do you know if your marriage is the victim, or potential victim, of the "marriage penalty tax" in the Internal Revenue Code?
  • If you move into a home that one of you already owns, do you know what the tax ramifications of transferring title to a new spouse could be?
  • Do you know what interest your state says your spouse has in any inheritance or personal injury award you receive?
  • If you move to another state after your marriage, do you know how the assets you own can be affected?
  • If you and your spouse executed a will in one state but moved to another, do you know what potential impact this could have on your estate plan?
  • If this is a remarriage for either of you, do you know how benefits from a prior marriage, such as alimony, social security benefits, pensions, retirement benefits, medical insurance, will be affected by your new legal status?
  • If you or your spouse have children from a prior marriage, did you know that some states differentiate between children of a current marriage and children from a prior marriage when someone dies without a will?

You may believe the idea of a premarital agreement is unromantic, but marriage itself is a contract between man, woman and the state. Often, it isn't until death or dissolution of the relationship that couples find how intrusive the state-controlled marriage laws can be.

The state's marriage contract is influenced by old-fashioned assumptions about the American family, assumptions that have little basis in today's reality. No matter how distasteful this control is, our intimate personal relationships are regulated by duties and responsibilities determined by the legislatures and the courts.

Marriage, even in the midst of the changes in our society today, is here to stay. For those whose faith in the institution of marriage remains hopeful, the secret to success is knowledge of the legal and financial ramifications of the union.

An understanding of how assets acquired in marriage are owned, both during the marriage and upon death or dissolution, is fundamental. The fifty states are divided into separate and community property states. However, within each state, the rules vary widely and are continually reevaluated as society demands.


Dr. Johnette Duff
Love and the Law

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