The Legal Guide to Getting Married
Getting married? We’ve outlined legal issues to consider.
Getting married involves more than planning the wedding. You might want to consider a prenuptial agreement—what would that entail? You’ll need to think about what your new last name will be and how to update your legal identification documents. If you have children, you’re probably thinking about how to legally manage their last names as well. Do you have a Will? We highly recommend updating it to reflect these exciting life changes. Knowing what you need to do before and after the wedding will help you enjoy this new chapter of life without fretting over the details.
Here, we’ll break down each big legal consideration of marriage so you can easily keep your head above water.
How LegalShield can make wedding planning easier
Prenuptial agreements
Responsibly prepare to enter marriage with your partner.
Things to consider prior to marriage
Often referred to as a prenup, a prenuptial agreement establishes the financial and property rights of each spouse in the event of a divorce. If you are planning a wedding, you aren’t likely thinking about an eventual divorce.
However, prenuptial agreements are also a great way for you and your partner to exercise communication skills and work through issues with each other before the wedding. Simply being open with your future spouse about your financial assets, needs, and concerns will help you responsibly prepare to enter marriage together.
To be valid, a prenuptial agreement must meet the requirements of state law which normally include proper execution before the marriage. State law requirements can differ, making it important to seek advice and assistance from a lawyer.
The purpose of a Prenuptial Agreement
Prenuptial agreements are not only for the wealthy; they allow you and your spouse to lay legal guidelines in several different areas of marriage:
- Separate your finances. If you earn more money than your spouse, the prenup helps limit the amount of alimony you could have to pay. If you own a business, the prenuptial agreement helps protects your business from an ex-spouse who might want a portion.
- Set up property rights and distribution. In a divorce, your prenuptial agreement has already addressed how your finances and assets will be split up.
- Protect yourself from debt. If your spouse has taken on a lot of debt, a prenup agreement may protect you from being liable for paying any of that debt.
- Determine what happens if you remarry. Much can change between a first marriage and a second marriage. If you have children, a new job, different assets or any number of changes, the prenup helps to ensure that your families are provided for.
The pros and cons of a prenuptial agreement
Creating a prenuptial agreement now, in the joyful calm of wedding anticipation, helps you avoid more grief if you ever find yourself in the middle of divorce proceedings.
Prenuptial Agreement pros
- You’ll have thoughtful discussions with your spouse to address important considerations and learn how to negotiate difficult topics with each other.
- It will provide transparency around your assets, which reduces tension and the need for court intervention in a divorce.
- It helps with property distribution in the event of death.
Prenuptial Agreement cons
- The most obvious drawback when creating a prenuptial agreement is discussing the potential of divorce before the ceremony.
- A prenuptial agreement can’t make decisions about children; those issues will have to be resolved in the best interest of any children during the separation/divorce.
- If a spouse asks the court to reject the prenup agreement, that could slow down the divorce process.
Prenuptial agreement reminders
Agreeing with your spouse to create a prenup before walking down the aisle doesn’t mean your marriage is going to end badly, but you must take the proper precautions if it does.
It’s not fun or romantic to create a prenuptial agreement, but it is vital to protecting your future and saving you massive headaches down the road.
Negotiating a prenup agreement with your spouse won’t seal the death of your relationship; rather, it’s proof that you and your spouse can handle the delicate discussions that are inevitably involved in marriage.
Name change
You're married—the ins and outs of a legal name change.
What it takes to change your name
Once upon a time, there weren’t many options for last names in marriage— men kept their surname, women changed theirs. Now you can take your spouse’s name, keep your own name, hyphenate your name with theirs, or create an entirely new name—whatever you want.
Only two major rules apply: Your marriage certificate must reflect your new last name, along with all your legal identification documents.
Incorporating your spouse’s name
Sometimes it takes people a year or longer after marriage to finish the process of changing their name. However, if you are taking your spouse’s surname or hyphenating your name with theirs, that is one of the simpler ways to change your name. Start with a driver’s license; you’ll need your marriage certificate to get that updated and then both documents are needed to:
- Notify your bank about your legal name change and ask for new checks, credit and debit cards. Make sure the post office knows about your name change and change of address if you have moved.
- Let your employers know to avoid running into issues with your paychecks.
- Alert your electric, phone and other utility companies.
- Tell your insurance, mortgage and credit card companies and notify your landlord.
- Tell the voter registration office, the passport office, your school and alumni associations, and your investment account providers.
- If you are a frequent flier, your airline needs to know so they can transfer your miles.
Choosing a different last name
If you use a last name that is not your spouse’s nor your original surname—such as creating an entirely new name—you will need to provide more information than just a marriage license. Some states require that you make a legal petition to change your name.
You may also need an order to show why you are changing your name and a decree to complete the process. A court will review them and (hopefully) grant you the legal name change.
Remembering some exceptions
Keep in mind that you can do almost anything you want to your last name. However, there are a few exceptions. For obvious reasons, you can’t change your name to avoid debt, commit crimes, or evade criminal charges. But there are a few more obstacles to changing your name:
- No numerals or punctuation marks.
- You can’t pick a name that is already trademarked or a celebrity name.
- Surnames shouldn’t include any obscene symbols, words or phrases.
Including a child in the name change
If you have a child from a previous relationship, their surname doesn’t have to change, even if you are changing your own after marriage. And if your new spouse legally adopts your child, you can treat their last name just like yours: change it, hyphenate it, or keep it as-is. You can apply for a new birth certificate that lists your new spouse as the child’s parent and reflects the child’s new last name.
If the child’s other parent is living, you must notify that parent of a name change. That parent must provide signed consent unless their parental rights have been terminated. Sometimes the other parent fights the name change or can’t be located, other factors may include the child’s age, what the child wants, and the reason for the name change.
Changing a child’s name is not the same as an adoption. You should seek advice from a lawyer.
Child custody
Navigating child custody and child support after marriage.
Children and remarriage
If you have a child and are getting remarried, it can be more complicated than a simple name change. While it’s always important to keep the child’s best interest in mind, a second marriage may unavoidably result in arguments over child custody, visitation and support rights. Sharing joint custody may be the preferred option for the child, but that isn’t always possible.
When addressing issues related to custody, seek advice from a lawyer to better understand your parental rights.
Child support
Overall, parents share equally the duty to support their child based on the need and ability to pay. Most states require both parents to support until they turn 18 or graduate high school. As the child’s parents, you and your ex-spouse may be required to show records of your financial details like income, tax returns, and Social Security payments.
The income of both parents will help determine which of you pays the primary support payments, as well as the child’s health insurance and other costs. If you are the parent who spends more time and money on the child, child support payments should reflect that. As always, you should seek the advice of a lawyer.
Child custody
Child custody rules are complicated and can vary from state to state, but a few major ones usually apply across the board:
- Typically, both parents have the right to receive all materials that concern the well-being and treatment of their child.
- Each parent gets access to their child’s school conferences, activities and progress, religious events, medical treatment, and other life events.
- Each parent is allowed to contact their child via mail or phone.
It’s imperative that the child’s best interests, wishes, and desires should be considered above the parents’ self-interests. It may not sound pleasant, but it’s best to converse with your future spouse and your child’s parent to decide what’s best for the child.
Hopefully, your calm and practical discussions will result in courses of action that keep your child’s life and education disrupted as little as possible. Based on several different factors, courts will also make the final legal decisions about parental custody, visitation rights, and even ex parte custody orders.
Changes in child custody
There are other circumstances beyond marriage which may result in child custody changes. The courts will probably need to be involved in these cases, and the laws can vary from state to state.
Normally, a party must show that a substantial and material change in circumstances, that affects the child’s well-being, has resulted in the need for a child custody change. Situations that could indicate necessary changes in custody include:
- Parental health/mental health
- Parental ability or inability to care for their child’s basic needs
- Parental capacity to love and guide the child through life
- Parental willingness to facilitate contact between the child and the child’s other parent
- Parental commitment to raising the child in a meaningful childhood and into a responsible adulthood
- Unstable living conditions
- The child’s own preference
- Potential separation of the child from any other siblings
- Agreement of the parties
Wills and trusts
Planning for your future.
Creating your Last Will and Testament
When starting a family, you begin to prepare for how you will care for them throughout life’s trials and tribulations. Though it can be unpleasant to consider for the worst-case scenarios, creating a Will is one way to provide a long-term plan for your loved ones.
A Last Will and Testament helps you control who inherits your belongings, who administers your estate, who is a guardian for your children and more.
Living Will vs Last Will & Testament
- A Living Will states your wishes about end-of-life care. This includes decisions about life-sustaining treatment, artificially administered food and water, and other important factors. In some cases, folks also appoint a health care agent.
- A Last Will & Testament provides your written instructions about what should happen to your property, estate and other assets after your death.
Learning about your Last Will & Testament
A Last Will & Testament is the legal document that lets you, or your executor, decide who gets your stuff after your death. You get to determine the person who will be responsible for the administration of your estate and the disposition of your property.
Some basic elements of the Last Will & Testament are worth explaining:
- Probate process: This is the court-supervised process of authenticating your Last Will & Testament. During probate, your appointed executor will oversee the final distribution of your estate while approving or denying creditor claims.
- Testator/Testatrix: This is the individual who makes the Will, in other words, you.
- Bequest section: This section of the Will details who will receive what of your property. A specific bequest is a gift, asset, or item that will be given to a specific receiving party. For example: You want your granddaughter to inherit your diamond engagement ring or a certain amount of money, so you specify that in the bequest section.
- Executor/Executrix/Personal Representation: This person petitions the court to open the probate of the estate. This executor may take stock of all the estate assets, after which creditors will make claims against the estate.
- Devisees and Legatees: These are the individuals or organizations that you named in your Will to receive assets upon your death.
Updating and contesting your Will
Updating your Will
You’ll want to think about updating your will with any changes in the law, or if you’ve had any big changes in your personal circumstances or finances. If you’ve made a promising investment or expect big success in your business, that’s a good time to change your Will.
You can make small changes to your Will by creating codicils, or secondary documents attached to your original Will. However, a more substantive change might require you to create a new Will in place of the old one.
Contesting your Will
People might contest your Will for any number of reasons: If you weren’t of sound mind when you signed it, if you didn’t have a proper witness or witnesses, if a beneficiary is upset or if the document has any kind of legal fault.
To avoid these and other problems, you’ll need to make sure your Will is clearly written and validly executed, which is different state by state. You should seek advice from an estate planning lawyer.
7 times you should think about updating your Will
- Changes in the law
- Financial setbacks
- Expected good fortune
- Change in committed relationships
- Becoming a parent or grandparent
- Losing a spouse
- Poor health
Need to speak with a lawyer? A LegalShield membership can save you thousands
Top legal needs associated with marriage:
Prenuptial agreement
Average cost: $1,500
Name change
Average cost: $900
Will preparation
Average cost: $2,000
Child custody support
Average cost: $4,000
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Frequently Asked Questions
A lawyer can help give guidance and help clients understand their rights and obligations. From advice to helping negotiate fair agreements, from resolving disputes to advocating in court, lawyers can help minimize the emotional and financial stress associated with family law matters.
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