Getting Married
This information comes from our friends at Nolo Press. For more information or to order this book, visit Nolo's site at http://www.nolo.com.
Marriage is the legal union of two people. When you are married, your responsibilities and rights toward your spouse concerning property and support are defined by the laws of the state in which you live. The two of you may be able to modify the rules set up by your state, however, if you desire to do so.
Your marriage can only be terminated by a court granting a divorce or an annulment.
Legal Effects of Marriage
1. What are the legal rights and benefits conferred by marriage?
Marriage entails many rights and benefits, including the rights to:- file joint income tax returns with the IRS and state taxing authorities
- create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income)
- create a marital life estate trust (this type of trust is discussed in Chapter 9 of Nolo's Everyday Law Book)
- receive spouses and dependents Social Security, disability, unemployment, veterans', pension and public assistance benefits
- receive a share of your deceased spouse's estate under intestate succession laws
- claim an estate tax marital deduction
- sue a third person for wrongful death and loss of consortium
- sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these lawsuits are available in only a few states)
- receive family rates for insurance
- avoid the deportation of a non-citizen spouse
- enter hospital intensive care units, jails and other places where visitors are restricted to immediate family
- live in neighborhoods zoned for "families only"
- make medical decisions about your spouse in the event of disability, and
- claim the marital communications privilege, which means a court can't force you to disclose the contents of confidential communications between you and your spouse during your marriage.
Marriage Requirements
1. Can anyone get married to anyone?
You must meet certain requirements in order to marry. These vary slightly from state to state, but often include:- being at least the age of consent (usually 18, though sometimes you may marry younger with your parents' consent)
- not being too-closely related to your intended spouse(see the chart below)
- having the mental capacity--that is, you must understand what you are doing and what consequences your actions may have
- being sober at the time of the marriage
- not being married to anyone else
- getting a blood test, and
- obtaining a marriage license.
Incest and Marital Prohibitions
All states prohibit a person from marrying his or her sibling, half-sibling, parent, grandparent, great-grandparent, child, grandchild, great-grandchild, aunt, uncle, niece and nephew. Some states have additional prohibitions.2. Does any state yet recognize same-sex marriages?
As of July 1997, lesbian and gay couples cannot legally marry in any state. This may change, however, as a case is presently working its way through the Hawaii courts that could legalize same-sex marriages in that state. A Hawaii Circuit Court ruled in December, 1996 that denying lesbian or gay couples the freedom to legally marry is unconstitutional. However, the state will not begin inssuing marriage licenses to lesbian of gay couples while the case is being appealed to the Hawaii Supreme Court. A decision is expected in early 1998. Even if same-sex marriages are eventually recognized in Hawaii, same-sex couples will be fighting an uphill battle to have their unions honored in the other 49 states. Several states, including Georgia, South Dakota, Texas and Utah have already passed laws designed to thwart same-sex marriages--and others are sure to follow. In addition, the Defense of Marriage Act was signed into law in 1996 barring the federal government from recognizing same-sex marriages and permitting states to ignore same-sex marriages performed in other states.For more information about same-sex marriage, you can contact the Forum on the Right to Marriage (FORM), (617) 868-3676. You may also want to contact the Marriage Project of the Lambda Legal Defense and Education Fund, (212) 809-8585.
3. What is a common law marriage?
In sixteen states, heterosexual couples can become legally married if they:- live together for a long period of time
- hold themselves out to others as husband and wife, and
- intend to be married.
When a common law marriage exists, the spouses receive the same legal treatment given to other married couples, including the requirement that they go through a formal divorce to end the marriage.
Procedures and Ceremonies
1. What's the difference between a "marriage license" and a "marriage certificate"?
A marriage license is the piece of paper that authorizes you to get married and a marriage certificate is the document that proves you are married.Typically, couples obtain a marriage license, have the wedding ceremony, and then have the person who performed the ceremony file a marriage certificate in the appropriate county office within a few days. (This may be the office of the county clerk, recorder or registrar, depending on where you live.) The married couple will be sent a certified copy of the marriage certificate within a few weeks after the marriage ceremony.
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.
2. Where can we get a marriage license?
Usually, you may apply for a marriage license at any county clerk's office in the state where you want to be married. (In some circumstances, you must apply in the county or town where you intend to be married--this depends on state law.) You'll probably have to pay a small fee for your license, and you may also have to wait a few days before it is issued.In some states, even after you get your license you'll have to wait a short period of time--one to three days--before you tie the knot. But if you wait too long, your license will expire. 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.
3. Do all states require blood tests? And why are they required?
Many states--but not all--require blood tests for couples planning to marry (see the chart below). These tests are to find out whether either partner has a venereal disease or rubella (measles). The tests may also disclose the presence of genetic disorders such as sickle-cell anemia or Tay-Sachs disease. You will not be tested for HIV, but in some states, the person who tests you will provide you with information about HIV and AIDS.If either partner tests positive for a venereal disease, what happens depends on the state where you are marrying. Some states may refuse to issue you a marriage license. Other states may allow you to marry as long as you both know that the disease is present.
4. Who can perform a marriage ceremony?
Non-religious ceremonies--called 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 to conduct a marriage ceremony. Religious ceremonies must be conducted by a clergy member (priest, minister or rabbi). Native American weddings may be performed by a tribal chief or by another official, as designated by the tribe.5. Are there requirements about what the ceremony must include?
Usually, no special words are required as long as the spouses acknowledge their intention to marry each other. Keeping that in mind, you can design whatever type of ceremony you desire.It is customary to have witnesses to the marriage, although they are not required in all states.
