Top 10 Things To Consider When Getting Married in 2015:
Should We Talk to an Attorney Before Getting Married?
There’s no question that 2014 transformed the practice of marriage in the Great Northwest and delivering great news for Oregon and Washington’s LGBT couples. With wedding season right around the corner—whether you’re in a same-sex or heterosexual relationship—couples are confronted with the legal considerations about whether, when, and how to marry. Making a commitment like this requires careful planning as marriage creates a long-term, complex legal relationship. Here are a few things to think about before “tying the knot” this year:
1. What happens when our relationship ends?
One of life’s truisms is that everything is temporary. You may not want to think about it when anticipating marital bliss, but even the strongest marriage will end with death or divorce. Knowing that, what steps can you take to see that your wishes are carried out when such a crisis occurs? A lawyer can help a couple contemplating marriage develop answers to this and other questions.
2. What kind of a problem solver is my partner?
This is not really a legal question, but it is so important to your legal affairs that it must be considered. Life seems incredibly happy when we are in love, but real life presents never-ending challenges and problems to overcome. How does your partner react to life’s everyday troubles? A person who responds with anger or frustration at minor inconveniences may not be the partner you want to have when a child gets in trouble at school. If your marriage were to end in divorce, would your partner still want the best outcome for you?
3. Do I need a premarital agreement?
Two of the key characteristics of state-sanctioned marriage are that the state prescribes a standard estate plan for married couples and it sets out the procedures and rules for getting divorced. These general state-prescribed rules apply unless a couple agrees in writing that they want different rules by establishing their own estate plan or premarital agreement. Couples who live together before marriage and have a domestic partnership need to investigate and understand what would happen under the state’s prescribed processes if their relationship ends and compare it to what would likely happen if they marry. Married couples need to consider what might happen if they get divorced and determine what rules they want to apply. Premarital agreements can help define who gets what if a death or divorce occurs. The process of exploring whether or not to enter into a premarital agreement can also serve as a tool for creating clarity in a couple’s financial dealings before they get married.
4. What are we doing with property each of us owns separately?
In some circumstances, property owned by a person before marriage can be awarded back to that same person upon divorce, without a corresponding award to the other party. Couples contemplating marriage should consider carefully what they want to happen with such property and make sure that documents of title are exchanged if needed to carry out the parties’ wishes. A premarital agreement can address this as well.
5. How will my public benefits be affected by our marriage?
“Means-tested” public benefit programs, such as Medicaid and Supplemental Security Income (SSI), generally look to both spouses’ resources to determine eligibility. This means that marriage may place some public benefits in jeopardy. Careful planning before walking down the aisle is crucial to prevent disqualification or a disruption in benefits.
6. Will we have children? How?
Whether to have children is a key decision most couples make. It’s best to talk the issue out thoroughly before tying the knot. LGBT couples, in particular, may need to consider some kind of assisted reproduction, since adoption options can be limited. In vitro fertilization and surrogacy may be available, although both are expensive and filled with legal uncertainty. Donor insemination is cheaper, but carries its own set of legal difficulties. Consultation with a lawyer skilled in the field of assisted reproductive technology (ART) can be helpful in understanding these issues. Under no circumstances should you perform your own insemination without talking to a lawyer first.
7. Will one of us provide most or all of the other partner’s financial support?
Many couples rely on one partner primarily to keep the home and raise the children, and the other to primarily provide financial support. These arrangements affect financial support obligations and child custody questions in ways that you may not fully understand or appreciate. It makes sense to talk to a lawyer before putting these financial aspects of your relationship into action. When you get divorced is not the time to realize that the financial arrangements you willingly entered into with your spouse may result in paying alimony for the rest of your life.
8. How will we handle debt?
A certain amount of debt (primarily home mortgages, car payments, and student loans) is common and acceptable in most families. The buildup of unsecured credit card debt, however, can place an unreasonable financial and emotional strain on even the strongest relationship. Be sure you understand your partner’s spending and savings patterns and ensure that they are compatible with your own. Also, understand that by marrying, you may become liable for your partner’s basic financial support, whether or not you agree with their spending habits.
9. What if I get an inheritance?
Unlike some states, Oregon has a specific process by which an inheritance or a gift can be kept separate from the marital estate and largely or completely kept intact by the spouse who receives it. Consulting with a lawyer will help you understand how to be in the best position to try to keep your inheritance free of the divorce process.
10. How will marriage affect my estate plan?
In most circumstances, the act of marriage automatically revokes the married couple’s existing wills. All couples contemplating marriage should consider reviewing and updating their estate plans with a qualified attorney.
Written by John Christianson, Of Counsel (Estate Planning) and Mark Johnson Roberts, Of Counsel (Family Law)