Marriage

Marriage places two people into a legal relationship with one another. Beyond any societal implications, marrying conveys rights and liabilities to a spouse that are far-reaching. Once married, you may the right to share in your spouse’s income and property, be responsible for his or her debts, have sole authority over your spouse’s medical care should he or she become incapacitated and have the right to inherit in the case of his or her death. Under the law, none of these rights require additional agreements between the spouses. The marriage is the agreement.

The important legal implications of marriage mean that certain requirements must be met in order to become a married person. Laws generally require that the person be of a certain age (usually 18 years of age or over), and that a license be obtained from a government agency, such as a county clerk. The requirements are simple; however, the obstacles are many. As discussed below, marriages may be invalid or voidable, for many reasons, including incapacity, age, and a current marriage to another person.

Requirements

The requirements for entering into a valid marriage are determined according to state law. The laws set out different requirements, but once married and having met the requirements, the marriage is recognized in all states. If a marriage is valid in the place it was performed, it is valid wherever the couple resides.

Marriage License

A license is generally required before a couple is allowed to marry. The couple applies at the county marriage license office and pays a fee to have the license issued. The official marrying the couple signs the license and it is then filed with the county clerk’s office.

It is difficult for me to leave work. Do we both have to be present to get the marriage license?

Yes. Laws require that both parties applying for a marriage license appear in person. The application must be signed by both of you in the presence of a city or county clerk.

I gave my mother a power of attorney allowing her to apply for my marriage license on my behalf since I’m overseas. Can the clerk issue the license?

No. You must be present with your fiancé in order to obtain a marriage license. The clerk will not accept a power of attorney.

Do we have to live in the state where we are applying for a marriage license?

No. If you meet the state law requirements, you will be issued a license.

Can we obtain a marriage license if we are the same sex?

Only the state of Massachusetts currently issues marriage licenses to same sex couples. Laws will not allow the marriage to be recognized in most states and although there is no clear prohibition in others, no state has the obligation to recognize your marriage under the Defense of Marriage Act (DOMA).

TIP: For information on how to get married in Massachusetts if you are a same sex couple, go to www.glad.org/marriage/howtogetmarried.html.

SIDEBAR: Laws concerning the issuance of marriage licenses routinely prohibit issuing a marriage license for people of the same sex.

SIDEBAR: The Defense of Marriage Act (DOMA) permits one state to refuse to recognize a same-sex marriage that occurred in another state even if the marriage was legal. Additionally, DOMA denies federal recognition of same-sex marriages by recognizing marriage between a man and a woman only.

TIP: DOMA does not outlaw same-sex marriages; however, many states are adopting constitutional amendments prohibiting marriage between couples of the same sex.

SIDEBAR: The Federal Marriage Amendment (FMA) has been proposed as an amendment to the U.S. Constitution, creating a definition of marriage as between a man and a woman. The proposed amendment states:

“Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

What do we need to bring with us when we apply for a marriage license?

At a minimum, you must bring a driver’s license or passport (proving your identity) and a birth or baptismal certificate (proving your age).

TIP: Always call the clerk in the marriage license office to determine what documentation is required before a marriage license will be issued. Ask if you need a notarized copy of your birth certificate. Copies are sometimes not accepted.

How much is the fee?

Fees vary widely depending on the state in which you live. Some marriage license offices charge as little as $4 and some as much as $80. Typically, the fee is approximately $50.

TIP: Call ahead to find out the fee and ask what form of payment is accepted. In some cases, you may need to bring cash.

Can the fee be waived?

No. Most counties do not have a provision for waiving the fee. However, if you are unable to afford the fee, it is advisable that you call the clerk’s office and ask what the policy is.

Can we get married without a license?

No. Laws generally make it a misdemeanor for an authorized official to marry a couple without a license.

Can we use our marriage license in any state?

No. The license can only be used in the state in which it was issued. For example, an official in New Jersey will not marry you if you have a New York marriage license.

We want to get married in Mexico. Where do we get a license?

Couples marrying in a foreign country must meet the marriage requirements of that country. You should contact the Mexican embassy in the United States to determine what is required.

TIP: Once in the foreign county, immediately contact the U.S. Embassy there to confirm that you meet the requirements allowing your foreign marriage to be recognized in the United States.

TIP: Some countries require couples to have resided there for a period of time before a marriage can take place. For example, France requires that couples wishing to get married there live in the country at least 40 consecutive days before the marriage occurs.

SIDEBAR: An American’s marriage to a foreign citizen in no way guarantees that the foreigner will be able to obtain American citizenship.

Do marriage licenses expire?

Yes. Once the license expires, you must reapply in order to be married.

The pastor didn’t sign our license. Can we still file it?

No. The license must be signed and dated by the pastor before it can be returned to the clerk’s office for filing.

When does our marriage license have to be filed?

The license must usually be filed within a matter of days after the marriage occurs. Laws vary from state to state, but a 30-day time period is typical.

My husband did not give his real age on our marriage license. Are we legally married?

Yes. A benign fraudulent statement made in obtaining a marriage license typically does not affect the validity of the marriage.

My husband and I never obtained a marriage license although we have been married for 10 years. Is our marriage valid?

Yes, in states that recognize common law marriage. However, if you live in a state where the law provides that a marriage is void unless you have obtained a marriage license, you and your husband are not legally married.

TIP: States that recognize common law marriages include Alabama, Colorado, the District of Columbia, Georgia, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas. The requirements for a common law marriage are discussed below.

Marriage License

A license is generally required before a couple is allowed to marry. The couple applies at the county marriage license office and pays a fee to have the license issued. The official marrying the couple signs the license and it is then filed with the county clerk’s office.

It is difficult for me to leave work. Do we both have to be present to get the marriage license?

Yes. Laws require that both parties applying for a marriage license appear in person. The application must be signed by both of you in the presence of a city or county clerk.

I gave my mother a power of attorney allowing her to apply for my marriage license on my behalf since I’m overseas. Can the clerk issue the license?

No. You must be present with your fiancé in order to obtain a marriage license. The clerk will not accept a power of attorney.

Do we have to live in the state where we are applying for a marriage license?

No. If you meet the state law requirements, you will be issued a license.

Can we obtain a marriage license if we are the same sex?

Only the state of Massachusetts currently issues marriage licenses to same sex couples. Laws will not allow the marriage to be recognized in most states and although there is no clear prohibition in others, no state has the obligation to recognize your marriage under the Defense of Marriage Act (DOMA).

TIP: For information on how to get married in Massachusetts if you are a same sex couple, go to www.glad.org/marriage/howtogetmarried.html.

SIDEBAR: Laws concerning the issuance of marriage licenses routinely prohibit issuing a marriage license for people of the same sex.

SIDEBAR: The Defense of Marriage Act (DOMA) permits one state to refuse to recognize a same-sex marriage that occurred in another state even if the marriage was legal. Additionally, DOMA denies federal recognition of same-sex marriages by recognizing marriage between a man and a woman only.

TIP: DOMA does not outlaw same-sex marriages; however, many states are adopting constitutional amendments prohibiting marriage between couples of the same sex.

SIDEBAR: The Federal Marriage Amendment (FMA) has been proposed as an amendment to the U.S. Constitution, creating a definition of marriage as between a man and a woman. The proposed amendment states:

“Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”

What do we need to bring with us when we apply for a marriage license?

At a minimum, you must bring a driver’s license or passport (proving your identity) and a birth or baptismal certificate (proving your age).

TIP: Always call the clerk in the marriage license office to determine what documentation is required before a marriage license will be issued. Ask if you need a notarized copy of your birth certificate. Copies are sometimes not accepted.

How much is the fee?

Fees vary widely depending on the state in which you live. Some marriage license offices charge as little as $4 and some as much as $80. Typically, the fee is approximately $50.

TIP: Call ahead to find out the fee and ask what form of payment is accepted. In some cases, you may need to bring cash.

Can the fee be waived?

No. Most counties do not have a provision for waiving the fee. However, if you are unable to afford the fee, it is advisable that you call the clerk’s office and ask what the policy is.

Can we get married without a license?

No. Laws generally make it a misdemeanor for an authorized official to marry a couple without a license.

Can we use our marriage license in any state?

No. The license can only be used in the state in which it was issued. For example, an official in New Jersey will not marry you if you have a New York marriage license.

We want to get married in Mexico. Where do we get a license?

Couples marrying in a foreign country must meet the marriage requirements of that country. You should contact the Mexican embassy in the United States to determine what is required.

TIP: Once in the foreign county, immediately contact the U.S. Embassy there to confirm that you meet the requirements allowing your foreign marriage to be recognized in the United States.

TIP: Some countries require couples to have resided there for a period of time before a marriage can take place. For example, France requires that couples wishing to get married there live in the country at least 40 consecutive days before the marriage occurs.

SIDEBAR: An American’s marriage to a foreign citizen in no way guarantees that the foreigner will be able to obtain American citizenship.

Do marriage licenses expire?

Yes. Once the license expires, you must reapply in order to be married.

The pastor didn’t sign our license. Can we still file it?

No. The license must be signed and dated by the pastor before it can be returned to the clerk’s office for filing.

When does our marriage license have to be filed?

The license must usually be filed within a matter of days after the marriage occurs. Laws vary from state to state, but a 30-day time period is typical.

My husband did not give his real age on our marriage license. Are we legally married?

Yes. A benign fraudulent statement made in obtaining a marriage license typically does not affect the validity of the marriage.

My husband and I never obtained a marriage license although we have been married for 10 years. Is our marriage valid?

Yes, in states that recognize common law marriage. However, if you live in a state where the law provides that a marriage is void unless you have obtained a marriage license, you and your husband are not legally married.

TIP: States that recognize common law marriages include Alabama, Colorado, the District of Columbia, Georgia, Iowa, Kansas, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina and Texas. The requirements for a common law marriage are discussed below.

Legal Age

Persons who have not reached a certain age are prohibited from marrying. An under-age applicant will not be issued a license unless they obtain parental consent. Laws in all states except for Mississippi (21 years old) and Nebraska (19 years old) require that those wishing to marry be at least 18 years of age.

Does it matter how old I am if my parents consent to my marriage?

Yes. Laws generally prohibit the issuance of a marriage license if the person is under 14 years of age; it is irrelevant if a parent consents or not.

Can my 16-year-old daughter get married without my consent?

No. Your consent is necessary for a marriage license to be issued.

TIP: Often the written consent of both parents is required.

TIP: Parents giving consent must accompany their child when applying for a marriage license.

My 16 year old daughter has my permission to marry but I have no idea how to get in touch with her father. Is his written consent necessary?

Yes; however, an exception to this rule is sometimes allowed. While laws vary, generally one parent’s consent is sufficient if:

  • the consenting parent was given sole custody of the child at the time of a divorce;
  • the other parent’s whereabouts have been unknown for 1 year prior to applying for a marriage license; or
  • the other parent is deceased or has been judged incompetent

Waiting Period

In the past, a couple had to wait a matter of days or hours after obtaining the marriage license before they could actually marry. Currently, waiting periods exist in only a handful of states. For example, Texas law requires a 72-hour waiting period while Wisconsin requires 6 days. Where one is required, the typical waiting period is 2-3 days after the license is issued.

Because my fiancé is being shipped to Iraq tomorrow, we don’t have time to wait. Can the waiting period be waived?

Yes. Military personnel on active duty are typically exempt from waiting periods.

How do we get the waiting period waived?

You must request a waiver from a judge. Typically, the clerk in the marriage license office will have a waiver form. You must find a judge and explain the reasons for needing the waiver. Once he signs the form, you can be married.

Blood Test

Laws requiring a blood test to be performed on couples wishing to marry exist in only a few states. In those states, a marriage license will not be issued until a blood test is performed.

Why do we have to have blood tests?

The blood test screens for syphilis and/or rubella (German measles). Laws requiring blood tests were enacted to prevent persons with venereal and other sexually transmitted diseases from obtaining a marriage license and passing the disease to a spouse or children of the marriage. In most states, blood tests can be waived for people over 50 and for other reasons, including pregnancy or sterility.

If the test is positive, what happens next depends on the state in which the marriage will take place. Some states may refuse to give you a marriage license while other states will allow you to marry as long as you are both notified that the disease is present.

SIDEBAR: Currently, blood tests are required in Connecticut, the District of Columbia, Georgia, Indiana, Massachusetts, Mississippi, Montana, and Oklahoma.

Do we both have to be tested before getting a marriage license?

Yes. Both marriage license applicants must have a blood test performed.

I had a blood test last year during my annual physical. Is that sufficient?

No. Laws require the blood test to be done within a matter of days before or after applying for the marriage license. Typically, the blood test must be performed within 30 days of the application.

Is there a fee?

Yes. The county health department will charge approximately $25. Lab and physician fees vary.

Who has to perform the blood test?

The test can be given by your own doctor, any physician, or an authorized lab. Additionally, county heath departments typically perform blood tests in states where the test is required to obtain a marriage license.

Are you tested for AIDS?

No. The blood tests do not screen for HIV, AIDS or sexually transmitted diseases other than syphilis. However, in some states, the person who tests you will provide you with information about HIV and AIDS.

TIP: If you want your blood tested for HIV or other factors, such as cholesterol, those tests can be added to the screening.

We had our blood tests done. Can we get our marriage license now?

No. You must wait until a medical or health certificate has been issued by either the county or your doctor.

Ceremony

A marriage is not completed until a ceremony is performed. The issuance of a marriage license is written permission from the state allowing a couple to marry. However, until the ceremony takes place, a legal marriage does not exist.

Can only a judge or pastor/priest marry us?

No. Laws allow for several types of officials to perform marriages, including:

  • the mayor of a city;
  • military chaplains (if one member of the couple is in the military);
  • the city clerk in very large cities; and
  • a marriage “officer” appointed by a city council.

We belong to a religion that is not generally recognized. Can our minister marry us?

Yes. Generally, a spiritual leader chosen by a spiritual group to preside over the congregation is recognized by the law as someone with the authority to conduct a marriage ceremony.

Our yoga teacher conducts marriages during class. If he marries us, is our marriage valid?

Not unless the yoga teacher is authorized to marry people, i.e., he meets the criteria for officials entitled to perform marriages.

We were married by a person whom we have since found out did not have the authority to marry us. Is our marriage valid?

Not unless you live in a state that recognizes common law marriages. Laws require that authorized persons must conduct the ceremony in order for the marriage to be valid.

Can a ship’s captain marry us?

No. Unless the ship’s captain is a judge or a minister, he or she does not have the authority to marry at sea. In fact, U.S. Navy regulations specifically forbid commanding officers from performing marriages.

TIP: If you were married on a ship by the captain and believe the marriage is valid, you may have a common law marriage in states that recognize them.

Are there any requirements as to what must be said or recited during a marriage ceremony?

No. Laws generally do not require any specific oaths, recitals, vows or responses during the ceremony.

Can a marriage ceremony be performed if one of the parties is unable to be present?

Yes. The absent party can appear through a proxy – a person he or she has authorized to take his or her place. The marriage is presumed valid if it is valid in the country that performs the ceremony. However, before the ceremony can be conducted with a proxy, the absent party must execute a power of attorney naming a person as his or her proxy for the purposes of a marriage ceremony.

TIP: Only a few states in the United States allow marriage by proxy. Before attempting to enter into one, research the laws of the state in which you plan to be married.

Can we be legally married without witnesses?

Yes. The absence of witnesses to the ceremony does not make your marriage illegal or invalid.

Common Law Marriage

In some states, laws convey marital status to couples who live together as man and wife without ever having obtained a marriage license or participated in a marriage ceremony. Even if the laws of one state do not recognize common law marriages, the marriage will usually be recognized if it was formed in a state that does permit them.

A common law marriage is no different from a ceremonial marriage – it is simply a marriage without the formalities. However, since formalities are absent, certain requirements must be met to prove the existence of a common law marriage.

Requirements

A valid common law marriage must meet the basic requirements of a licensed marriage – the person must be of age and not already married. Additionally, the couple must:

  • openly cohabitate or live together;
  • hold themselves out or conduct themselves in public as man and wife, so that they are believed to be married by others in the community; and
  • have an intent or agreement that they are in a marital relationship, i.e. are man and wife.

How long do we have to live together before a common law marriage is formed?

There is no specific time period required. You must have an agreement that the two of you are married and have held yourself out as man and wife.

SIDEBAR: Common law marriages can be “verified” by the parties by making and registering a “declaration of informal marriage” in the county in which they reside.

Can I just tell a few friends that I’m married in order for a common law marriage to exist?

No. Holding yourself out as married to the public means letting more than a few close friends know that you consider yourself married. However, actually announcing a marriage is not required. Actions such as living together for a period of time and referring to each other as “husband” or “wife” prove the intent to be married.

We’ve never talked about marriage but I used my partner’s name when we rented apartments and on utility bills. Do we have a common law marriage?

No. Although you can argue that you have held yourself out to the public as married, the two of you have no agreement or intent to be married. Without an agreement, a common law marriage is not formed.

For years, my partner has introduced me as his “wife” although we were never actually married. Do we have a common law marriage?

Yes, assuming you are cohabitating and the public believes you are married. By not contradicting your “husband” when you were introduced as his “wife,” it appears that you had an agreement or intent to be married over the course of several years.

I’ve lived with my girlfriend for many years and everyone believes we are married. We plan to get married in the future but in the meantime have we established a common law marriage?

No. An agreement to marry in the future means you do not have a present intent to be married. Although the two of you are living together and apparently are holding yourself out as married, there is no present agreement between the two of you that you are currently married.

My husband and I were divorced but are now living together again and our family believes we are married. Have we established a common law marriage?

Yes. If you meet the requirements, you can create a common law marriage even though you are legally divorced.

I’m 17. Can I establish a common law marriage?

No. You must be at least 18 to enter into a common law marriage.

I’ve been living with my girlfriend for 4 years (since I was 17). We refer to each other as husband and wife, and our family believes we are married. Do we have a common law marriage?

Yes. At the age of 17, the law does not permit you to be in a common law marriage, but once you turn 18 years old, a common law marriage comes into existence if all the other requirements are present.

If we split up, do we need an actual divorce?

Yes. Although common law marriage exists, common law divorce does not. The marriage ends only through death, divorce or an annulment.

Restrictions To Marriage

Even if all the basic requirements are met, a marriage license cannot be issued if certain factors are present. These impediments make the marriage void under the law.

Can I marry someone who is not an American citizen?

Yes. There are no restrictions as to the citizenship, nationality or race of the person you wish to marry.

Can I marry someone who is incarcerated in prison?

Yes. Inmates are permitted to marry. However, you must comply with the regulations of the prison where the person is serving their sentence. Prisons have visitor or family coordinators who will be able to provide you with information.

TIP: If you are marrying a federal prisoner, the U.S. Department of Justice’s Bureau of Prison’s website at www.bop.gov is a good source of information.

Void versus voidable marriages

Marriages may occur even though all the legal requirements are not fulfilled. The marriage will still be valid unless its basis is challenged; thus resulting in a voidable marriage. For instance, a minor may be able to obtain a marriage license by lying about her age. If she does marry, the marriage is valid unless the minor, a parent, or guardian petitions the court for an annulment. Additionally, if the challenge to the marriage does not occur before the minor turns of age, the marriage can never be challenged on that basis.

On the other hand, some marriages are so against public policy that they are null and void automatically under the law. In those circumstances, an annulment resolves any legal issues between the parties and dissolves the purported marriage. Void marriages are those where the “spouses” are:

  • closely related (laws do not allow marriages between parents and their children, brothers and sisters, (including half-siblings), aunts and uncles); or
  • already married to someone else.

Couples in void marriages have no rights to their spouse’s property, income or assets. For example, if one person passes away, no inheritance rights vest in the living spouse. In that situation, even in a community property state, no community property could exist since the marriage did not legally exist.

My wife was already married when she married me. Is it necessary to get an annulment?

Yes. Although the marriage is null and void, your relationship should be legally severed by obtaining an annulment.

My husband and I never obtained formal divorces from our ex-spouses. Now that he has passed away, will I get the benefits from his retirement plan that generally pass to a spouse?

No. You are not a spouse and therefore have no legal right to the benefits. However, if you were named as the beneficiary of his retirement plan, your marital status is irrelevant and you would be entitled to receive payments.

My wife and I had several joint bank accounts. I knew she was married to someone else when we married. Do I inherit her share of the money?

No. The marriage is void, since at the time of the marriage your wife was legally married to another person and you were aware of that fact. Unless you were specifically named in a will, the law typically gives the right to inherit to her children or parents.

Can I marry my adopted daughter?

No. Laws prohibit marriages between a parent and a child, even where the child was adopted.

TIP: A marriage to an adopted child is also a criminal act because the relationship is incestuous. Incest is a crime.

SIDEBAR: In blended families, parents may legally marry their step-children if no adoption has occurred.

Capacity

A marriage is voidable if a person marries without the capacity, or understanding, that a marriage is occurring. A mental illness may incapacitate a person. Intoxication often results in a voidable marriage, as well. In these situations, the incapacitated person is entitled to an annulment. Additionally, a person who cannot perform sexually is considered incapacitated and an annulment can be granted on those grounds.

My elderly mother just married a much younger man. Isn’t she incapacitated and unable to marry?

No. Age alone does not incapacitate a person so he or she cannot marry. You have to show that your mother was not capable of understanding what she was doing when she married the younger man.

SIDEBAR: Eccentricity is not incapacity.

Minors

In the United States, a person must be at least 18 years old to marry (some states require the parties to be older than 18) without parental consent. However, minors who do marry have a valid marriage until it is annulled or voided. Additionally, a married person or spouse, regardless of age, is generally given adult status under the law. For example, a married minor can enter into contracts.

I lied about my age and used altered documents to obtain a marriage license. Is my marriage valid?

Yes, if you have since turned the legal age for marriage in your state.

SIDEBAR: Underage marriages are valid marriages until they have been voided or annulled by a court order.

SIDEBAR: Once married, the minor becomes “emancipated” and remains emancipated until the marriage is voided or annulled.

I’m a minor. Can I have a common law marriage?

No. Although common law marriages are recognized in some states, a common law marriage is void for someone who is a minor.

TIP: A spouse cannot inherit from his common law wife who was a minor at the time of her death.

My underage daughter got married in Mexico. Can I have the marriage annulled?

Yes. Since your daughter is underage, her marriage is voidable. As her parent, you can file a petition with the court requesting an annulment.

My son was married in another country when he was 16 years old. He has since died and I want the marriage declared void. Can I have it annulled?

No. You could only file your petition for annulment while your son was alive. The death of a spouse means the marriage can no longer be challenged.

Duties

Spouses are required to support one another by law. Additionally, a spouse who fails to fulfill that duty is liable to the person who does provide necessary support. The duty to support is limited to providing the necessities of life, and no more. Housing, food, transportation, and medical care are necessities. Additionally, a spouse has a duty to pay the debts of his or her spouse that relate to those necessities. A husband, for example, is liable for his wife’s medical bills even if he had no agreement with the hospital to pay.

According to the couple’s lifestyle, necessities may be more extravagant. For instance, it might be necessary for a wife to purchase designer clothing because of social commitments that are customary in the household.

SIDEBAR: In community property states, if there is no community income, a spouse must use separate property to support the other spouse. For instance, where neither the husband nor the wife has a job and the sole income is from the wife’s parents who give her gifts of cash, that cash must be used to support the husband.

Are charitable donations a necessity?

No. Charitable donations do not constitute a basic need nor are they necessary to maintain a particular standard of living.

Is a housecleaning service a necessity?

No. Paying someone to clean your house is not a necessity of life.

Are therapy sessions a necessity?

Yes. Therapy and psychiatric care are medical necessities.

Do I have a legal duty to have sex with my spouse?

No, and forcing sexual relations may be a sexual assault under some state laws. However, refusal to engage in sexual intercourse with a spouse is grounds for an annulment.

Characterization of Property

Once married, a couple’s property is either characterized as marital, separate, or community property. Marital property is the property and debt that a husband and wife acquire during marriage for the benefit of the marriage. Everything a married couple acquires during the marriage is owned by the two of them, regardless of in whose name the acquisition was made or whose money was used to purchase it. As a general rule, property and debt acquired after the date of separation is not marital, unless a marital resource was used to acquire it.

Property that is not marital is called non-marital or separate property. This property belongs to only one of the individuals in the marriage, not to both. The property that each spouse brings into the marriage is considered to be separate or non-marital property. In addition, inheritances, including bequests and devises, and gifts from third parties, are the separate property of the acquiring spouse, even if they are acquired during marriage. In order for the property to remain separate, the spouse must keep it entirely in her own name. Once the separate property has been commingled (mixed) with marital or community property, it becomes part of the marital property.

In addition to marital property and separate property, there are 9 community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In addition, Puerto Rico is a community property jurisdiction.

In these states, the income earned and the property acquired during a marriage is shared equally by the spouses. This is true even if one spouse earns all the money used to acquire the property. While there are differences in each state, all states have special laws that operate on the theory that both spouses contribute equally to the marriage. Therefore, all property acquired during the marriage is the result of the combined efforts of both spouses.

By virtue of community ownership, each spouse has an equal right of management and control of the community property; however, the property cannot be bought, sold or mortgaged without the other spouse’s consent.

EXAMPLE: If John buys a vehicle with his earnings, Mary owns it as well, even though her name is not on the title. John cannot secretly buy property during the marriage with his earnings and claim that it is separate – the property belongs to Mary, too.

As stated, in community property states, income earned by one spouse is treated as if the other spouse had earned half of it. This treatment has important tax consequences. For example, spouses filing separate returns must report half of the income the other spouse earned.

TIP: More information on tax liability in community property states can be found in IRS Publication 555, or online at www.irs.ustreas.gov/pub/irs-pdf/p555.pdf.

Not only are assets community property, one spouse’s debts also belong to the other spouse. For example, a wife is liable on her husband’s credit card debt. However, community property cannot be used to satisfy a separate debt of either spouse. For instance, if a couple pays off the wife’s student loan during their marriage, the husband is entitled to a reimbursement should the marriage end.

Marriage in community property states does not completely obliterate all separate property. The property and assets a spouse brings to the marriage remain her separate property as long as they are not commingled with community assets. Inheritances and gifts are also the separate property of the spouse who received them. Additionally, spouses can make written agreements dividing, or partitioning, the property acquired during marriage.

I have $10,000 in a bank account. Will the cash belong to my husband as well if I continue to keep the money separate from our joint accounts?

No. The $10,000 remains your separate property as long as you keep it separate. The money must remain in an account that marital earnings (such as your and your husband’s income) are not deposited into.

I have an IRA that I plan to continue to contribute to after I get married. Will it still be my separate property?

No. If you add money to the IRA with your earnings after you marry, the IRA will become marital property. Your earnings are marital property and by using those earnings to increase the IRA, you have commingled separate and marital property.

SIDEBAR: Once separate property assets are commingled with marital property, the assets become marital property. In some cases, the separate property can be traced or followed, but typically monetary assets become so commingled they are characterized as marital property.

My husband had a lot of money in our bank account when we got married. Now that we are divorcing, he wants to be reimbursed. Does he get back the original amount he had in the account at the time of our marriage?

No. Since the bank account became both of your account, the money has been commingled and all the cash in the account is now marital property.

My parents are giving me $5,000. Is this my separate property?

Yes. Gifts given to one spouse are that spouse’s separate property. However, if you deposit the money in your joint account, it will become commingled with martial property.

I have inherited an office building from my grandparents. Does it belong to my husband as well?

No. Your inheritance remains your separate property. If you sell the building, that amount remains your separate property as well if you are careful not to commingle it.

TIP: Rental payments from leasing the building are income and count as marital property.

I receive gas royalty payments every month on some mineral interests I owned before marriage. Are the payments community property?

Yes. Royalty payments earned during marriage are characterized as income. Income in a community property state belongs to both spouses. However, the mineral interests themselves (which produce the gas for which you are being paid) are not community property since you owned them before you were married.

I live in a community property state. My husband took out an equity loan on our house and can’t make the payments. Do I have to make them?

Yes. The bank that made the loan can sue you, as well as your husband, to recover the money. Because you live in a community property state, even though you did not sign off on the documents you are liable for all of your husband’s debts (and vice versa).

We are moving from a community property state to a non-community property state. Will our assets become separate property when we move?

No. The assets you and your spouse acquired remain community property. For instance, the money you receive from selling your house in Texas (a community property state) is community property. When you use the money to buy a new home in Oklahoma (a non-community property state), that house is community property.

My wife and I are divorcing. Can she sell the jewelry she acquired with our money while were married and keep the money?

No. Unless you agreed otherwise, the jewelry belongs to both of you and you are entitled to split the proceeds.

Converting marital property to separate property

Marital property can only be converted to separate property by a written agreement, such as a postnuptial or partition agreement (see below). Oral agreements to convert marital property into separate property are not valid and will not be enforced by the courts. For example, a verbal agreement that each spouse’s income belongs to the earning spouse is not enforceable.

Marital property that can be converted includes income from separate property that is typically owned both spouses. For instance, in a community property state, rent a wife receives on a duplex she owns separately is characterized as community property under the law. However, the spouses can agree in writing that those rental payments will remain her separate property.

Converting separate property to marital property

At any time during marriage, spouses can agree that all or part of their separate property is converted to community property. However, the agreement must:

  • be in writing;
  • be signed by both spouses;
  • identify the property being converted; and
  • specify that the property is now community property.