The law in most—if not all—states is that property you bring into the marriage remains your separate property, which means your spouse has no legal interest in it. That applies to both real estate and personal property. But there are a few caveats to this general rule. If you commingle your assets (like spouses pooling their personal bank accounts into a joint account) or change ownership to include your spouse as a part or full owner, then your property may also belong to your spouse.
In most cases, when spouses commingle assets they owned prior to the marriage, the law treats those assets as marital property (that is, property owned by both spouses). If a divorce occurs, a court will divide that property between the spouses based on the state’s law governing property division.
In the majority of states, courts use an equitable distribution method to divide assets and debts, which means the court divides the property in a way it believes is fair, under the circumstances of each case. However, in “community property” states, like California, marital property is split 50/50.
The bottom line is that if there’s certain property you want to ensure remains yours alone, be careful to segregate it and keep it separate from your spouse’s property and any jointly-owned martial property you acquire during your marriage.
As an aside, if you receive an inheritance or a gift during the marriage, state divorce laws don’t normally consider that marital property—it will remain your separate property as long as you don’t commingle it.
The concept of alimony (also referred to as spousal support or maintenance) has seen a dramatic change over the past few years. State laws today make it much less likely that a spouse will receive alimony for a lengthy period of time. This is grounded in the fact that there’s a growing number of two-income households, hence less need for support.
Additionally, there’s a push to make unemployed or under-employed spouses more self-sufficient. So the trend is for any alimony awards to be of limited duration. However, if the marriage is long-term (usually around 10 to 20 years, depending on your state), there’s a greater chance for a longer term of support.
The possibility of receiving or paying spousal support probably won’t be a deciding factor in how you and your spouse live your lives after marriage. But it never hurts to be mindful of what may lie ahead if problems arise at some point.
One scenario may be of particular interest. Under ordinary circumstances, if a divorce occurs only a couple of years after the marriage, there’s a good chance neither spouse would be entitled to alimony. But where one spouse worked to help put the other spouse through school or further a career, many states’ laws provide for “reimbursement” alimony. The theory is that the spouse who supported the other through school or a career advancement, did so with the expectation of reaping some of the reward of the other’s advanced education: namely, greater income. Reimbursement alimony seeks to ensure that the supporting spouse doesn’t get short-changed.
If you have children, be aware that courts will give top priority to their well-being, and will do what they believe to be in each child’s best interests. Judges will certainly consider parental input when making decisions, but the court has the final word regarding a child’s welfare.
Be advised that both parents have an obligation to financially support their children. Every state has child support guidelines that provide a formula for determining each parent’s support contribution.
Regarding custody and parenting time (visitation), courts have considerable discretion in devising a plan they feel will be the most viable for a particular set of circumstances. But, again, the best interests of the child is the paramount determining factor.
Today, more and more couples are utilizing prenuptial (also known as “premarital” or “antenuptial”) agreements to resolve potential marital issues in advance. A prenup agreement—which at its heart is a legal contract—can control virtually any topic that would come up in a divorce. The exceptions are child support, custody, and parenting time—these cannot be determined in advance.
A court won’t allow the agreement to usurp its authority when it comes to children. These issue can only be decided when they become current, that is when the parents end their relationship and try to resolve their child-related issues. They cannot be predetermined by a prenup agreement.
Of course, the premarital agreement can’t contain any provisions that are illegal. Also, a court will strike down any term of the agreement that it considers unconscionable, meaning it shocks the conscience or is grossly unfair.
States have specific rules governing prenuptial agreements. Failure to follow them could lead to a court declaring the agreement invalid.
Hopefully, you’ll have a wonderful marriage, and will never need to utilize any of the information in this article. But if things don’t work out as you’d hoped, you may want to consult with an experienced family law attorney in your area.