Tuesday, June 25, 2013

DO I NEED A PRE-MARITAL AGREEMENT IF I LOVE MY FIANCÉ?




What do you think it means to get married (or register as domestic partners)? Most people think that it is their very loud (and sometimes very expensive) way of announcing to the public at large that they won’t be sleeping around anymore.




But, frankly, that is the least of it. Here are the facts: When you get married you are entering into a legal contract with both your betrothed and the government. The terms of the contract are determined by the federal and state legislature and the courts. Those entities determine the laws, publish the laws, and then sit back. Their job ends there. They do not have any responsibility to ensure that you know the terms of the agreement you are signing when you sign your marriage license. There is no pop-up window and check box to make you are aware of what you’re getting yourself into or a drivers license-like test to ensure that you’re familiar with the applicable laws. If you crash your property rights into your marriage there is no one to blame but yourself.


Why does the government just leave you out on a limb like this? Marriage benefits government, for one thing. In California, husbands and wives are required to support each other financially even with their separate property and the government can sue a reticent spouse for not fulfilling that duty (for example, if your spouse applies for government funds for medical, food or housing the government can dig around in your separate property for a refund). Most people don’t realize that on the day they are proclaiming their ever lasting love the government is quietly rubbing its greedy hands together.


Most contractual relationships have beginnings, middles and ends. When you agree to have your mechanic fix your car they do it, you pay, and that is the end of it. When you go into business with your partner the partnership lasts only so long as the business. After you sell the land your land partnership ends. But, the default contract that applies when you get married doesn’t have an end. Even if you divorce your spouse, your obligations to support him or her can continue, in some cases for life.


If you don’t have any assets or children before you marry and you don’t expect to see a large inheritance in your life, chances are you’re not worried about getting a pre-marital agreement. But if you do fall into that category there is no romantic way to put this: marriage is a tar baby as far as assets are concerned and the old adage about a fool and his money applies. I recommend anyone considering marriage with questions about pre-marital assets to get a consultation from a qualified attorney. It isn’t a crime against love to educate yourself about the contract you are about to sign.


Every person has some expectation of the agreement they are getting themselves into when they marry (“after we marry we’ll share the house”, “if we have kids we’ll put everything into both of our names”, “both cars are in his name but one of them is ‘my’ car”, “if I stay home and raise the kids so he can have time to establish his business, he will support me with that business” “if she divorces me she will give back my grandmother’s ring”). Premarital agreements align the expectations of each person and, to the greatest extent possible, bend the applicable law to fit those expectations. Like any quality contract negotiation, you might not get everything you want but at least you will have a solid understanding of the terms.

By the way, if you or someone you know, has a domestic partnership agreement that they signed before they were allowed to legally marry their partner, they must read my post on what happens to that agreement after marriage.


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