2 Things You Need to Know Before Getting Married

“Love may be blind, but marriage is a real eye-opener.”

— unknown

I had no idea that getting married would put me in the incredibly vulnerable and precarious position that it did.

I’d been with my boyfriend for six years when we got engaged. We’d lived together for ages, and we didn’t have any religious reason for pursuing marriage. It was more that we thought it would be a fun excuse to bring our family and friends together for a celebration.

Plus, there seemed to be all of these benefits associated with being married that we were missing out on: tax benefits for filing your taxes jointly, employment benefits like being able to get health insurance coverage through your partner’s employer, government benefits such as receiving Social Security benefits for your spouse, estate planning benefits conferring inheritance rights, and so forth.  

You’d think that because I had a law degree from a top-tier law school, I would’ve understood what marriage would mean for us from a legal perspective. But nope - I had never studied family law, and I was completely oblivious as to what marriage entailed beyond the vows.  

So there I was - 26 years old, working hard through my last year of law classes and seminar papers, sporting the engagement ring of my dreams, and utterly naive as to what the potential negatives of marriage might be.

Well, ignorance is bliss, right?

If I had known then all that I would learn about marriage just three years later, I would’ve approached it very differently.

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Here’s the thing: I’m not anti-marriage. Marriage can be wonderful, and it works for innumerable couples. But I do feel that too many of us (myself included) enter into marriage unaware on some level of what we are really signing up for.

And that’s a problem.

Because marriage has certain legal and financial consequences that can hurt you (and I mean hurt you badly) in the case of divorce, should it ever come to that.   

And since half of all marriages in the U.S. end in divorce, and since you represent and control only one half of whatever marital partnership you are in (barring any polygamous scenarios), I think it’s important to go in eyes wide open, possessing at least some basic understanding of marriage’s legal implications.

By shedding some much-needed light on marriage and its ramifications, my intent isn’t to dissuade you from getting married. Rather, my goal is to arm you with the knowledge that I lacked and that I feel everyone should have before walking down the aisle.

So with that as a long-winded preface, here are a couple of things that I wish I’d known before taking the plunge into marriage:

1. There’s something called “Marital Property,” and it has serious implications.

The concept of “what’s yours is mine and what’s mine is yours” is pre-baked into marriage to a certain extent. By default, any property that is acquired during a marriage is treated as jointly owned by the couple.

This means that if one spouse passes away, the marital property goes to the surviving spouse. And in a divorce scenario, the marital property gets split equitably (unless a different allocation is requested by the couple and gets approved by the court).

In contrast, any assets or debts that you had previously and brought into the marriage remain your own separate property and aren’t subject to division in a divorce (usually, at least).

To better explain marital property and how scenarios can play out, let’s break it down into two categories:

• Marital assets

Marital assets include any property that one or both members of a couple acquires during their marriage. Examples of things that might fall into this category are: houses, cars, jewelry, furniture, cash, stocks, pensions, insurance, etc.

When one spouse purchases an asset during their marriage, such as a car, even if they do so with their own money or income, that asset is considered marital property. And that means in a divorce scenario, by default (barring any agreements otherwise), the value of that asset would get split between the two spouses. (The precise distribution of that split - whether it’s 50-50 or merely whatever the court deems “equitable” - will depend on your state’s laws).

To provide a personal example of how marital assets can be treated in a divorce, not long after getting married, I started a new job. As part of this job, I received an annual salary and bonus, I opened and began contributing to a retirement account, and I was issued company stock. Because I gained all of these “assets” after getting married, they were considered marital property and could be subject to split with my husband if we got divorced.

So by virtue of having gained certain assets during your marriage, upon getting divorced, you can end up “losing” some portion of them to your spouse, even if you solely earned those assets and may have perceived them to be yours.

• Marital debt

Similarly, marital debt refers to any debt incurred by one or both members of a couple during their marriage. Marital debt could include things like: school loans, car loans, credit card debt, etc.

In general, similar to marital assets, debt that is acquired during the marriage gets divided equitably in a divorce. That said, your state’s laws will largely determine how a given distribution scenario might play out.

In California, for instance, which is a community property state, you can be held jointly responsible for any debt that your spouse accrued during the marriage, even if you didn’t know about it.

I remember pretty vividly when I first learned about the concept of marital debt. Because when I discovered that my husband - who had chosen to leave me - could also have the legal right to saddle me with a portion of his law school debt, car loan debt, and credit card debt (some of which I’d never even known about, but had the joy of discovering during the financial disclosures process), while I had contributed zero marital debt to our marriage...well, let’s just say that I miiight have lost it a little.

(To be more specific, I may have actually drunk an entire bottle of wine and then - in true Colorado-fashion - gone on a fury-induced 5-mile run in the rain while sobbing uncontrollably…clearly one of my finer moments.)

I felt like the system was completely unfair. And yes, I get that life’s unfair. But this somehow felt more sinister.

Why hadn’t I known this could happen? Why didn’t I learn more about the laws surrounding marriage before getting married? And why were these laws structured in such a way that they could serve to benefit wrongdoers?

...which leads me to the second thing I wish I’d known going into marriage:

2. A good Prenuptial Agreement can be enormously valuable, but can also prove to be impotent.

The basic idea behind a prenuptial agreement (or “prenup”) is that it allows you and your partner to dictate upfront how you would like your property to be split in the case of a divorce.

So, as you’re now probably able to deduce based on the information I disclosed above, a prenup can be enormously helpful in avoiding the potential pitfalls of marital property. And if you have the foresight to get a prenup before you get married, bra-fucking-vo! You’re already entering into marriage more responsibly than I did.

There are a handful of good reasons to get a prenup:

(a) to “protect” you from the laws surrounding marital assets

A prenup can help you maintain separate ownership of your property, assets, and finances. It does this by:

• specifying that you get to keep certain assets that you bring into your marriage (as opposed to having them become marital property), or
• preventing any assets that you individually earn or accumulate during your marriage from becoming joint marital property, subject to splitting in the case of a divorce.

Again, some examples of potential marital assets include: salary, retirement accounts, stock options, etc. If you were to get divorced (and your prenup was enforced), these assets would go to you individually and not be divided with your spouse.

In effect, having a prenup allows you to dictate what should be treated as separate versus joint property in the case of a divorce.

(b) to “protect” you from the laws surrounding marital debt

A prenup can help shield you from your partner’s debt, whether that debt was:

• brought into the marriage by your partner (as debts they previously held), or
• accumulated during the marriage, for instance in the form of school loans, a car loan, etc.

(c) to allocate your property upon death

Having a prenup can enable you to specify how your property should be distributed upon your death (though, if used for this purpose, it should be backed-up with estate planning documents).

By default, when you are married and don’t have a prenup, some share of your property will go to your spouse upon your death. If you want to stipulate that a portion of your property should get distributed to other family of yours, children from a previous relationship, etc., you can lay that out in a prenup.

(d) to indicate how you and your spouse would like your property to be divvied up in the case of a divorce

A prenup can allow you and your partner to specify how you’d like things to be allocated if you ever get divorced. Without a prenup in place, state law will dictate how your property gets divided in a divorce scenario. But by contemplating the potential of a divorce upfront and specifying who would get what in your prenup, you:

• get to lay out your own rules for how things should get divvied up,
• potentially avoid conflict with your spouse on the topic, and
• save time and money if you ultimately do get divorced (because you’ve essentially already thought through and produced the content of the separation agreement ahead of time).

After reviewing how marital assets and marital debt can work, getting a prenuptial agreement before getting married probably sounds like a no-brainer.

The one wrinkle to all of this is, prenups aren’t always enforceable. Some reasons why a prenup could be found invalid include:

• if it’s not in writing
• if it wasn’t signed by both partners prior to the wedding
• if the agreement was poorly drafted or wasn’t properly filed
• if one of the partners was pressured into the agreement
• if one of the partners signed the prenup without reading it
• if there wasn’t sufficient time to review and consider the agreement prior to signing it
• if the parties to the agreement were not represented by independent counsel (i.e., represented by their own, separate attorneys in order to protect their individual interests) in drafting the prenup
• if it contains false or incomplete information (i.e., if it’s fraudulent)
• if it contains any provisions that are unenforceable (for instance, if it attempts to govern things that it cannot govern, like child support obligations or ridiculous/frivolous items)
• if the prenup is unconscionable/too lopsided (i.e., perceived to be “grossly unfair”, overly one-sided, or oppressive by the court)
  • To briefly expand on this last point, in a divorce scenario, if honoring the prenup would result in one party suffering severe financial hardship or being rendered destitute while the other prospers, the judge will not be likely to enforce/uphold it.

Prenuptial agreements are more commonly enforced in some states than others. (For example, Rhode Island’s laws have made prenups extremely difficult to invalidate).

But you should not presume that you’re “safe” just because you have a prenup. Whether or not your prenup is enforced will ultimately depend on the court.

So when it comes to prenuptial agreements, here’s what I’d recommend:

- Get a prenup in place before getting married, but make sure you go about it properly - meeting all of the requirements listed above and working with your own attorney to better ensure it will be enforceable.

- Recognize and be aware that there’s a chance your prenup may not be enforced. It is ultimately up to the judge to decide whether or not your prenup should be upheld. (If the prenup is called into question, you can go to trial. But that can be very expensive and drawn out and may or may not result in the agreement being honored, so it’s not an ideal scenario).

To sum up, it’s important to go into marriage with awareness of the legal implications that the marital contract carries. I hope you are able to learn from my experience and approach it more competently than I did.

Now, I would love for you to chime in. What are some of your thoughts on (or experiences with) marital property and/or prenuptial agreements. Was marital property a concept you’d heard of before? Do you feel that the property/debt/assets one acquires during their marriage should be shared by the couple?

And does all, or any of this information, dissuade you from wanting to get married? I hope not. Marriage isn’t easy. But nothing worth doing ever is.