Legal marriage is a contract in which two individuals mutually promise to live together as spouses so long as they are both alive. Both individuals must have the legal capacity to enter into the contract; in some states, legal capacity includes the requirement that the couple consists of a man and a woman; in other states, the individuals may be the same gender. Due to the great social importance placed on legal marriage, this contract conveys a substantial bundle of rights and responsibilities to spouses. As of December 31, 2003, the U. S. General Accounting Office listed 1,138 federal statutory provisions in which marital status is a factor for determining benefits, rights and privileges. However, same-sex marriages convey varying state and federal benefits, depending on where the couple is married or domiciled, and civil unions convey even fewer benefits (but those matters are best left for another article). For purposes of this article, legal marriage generally conveys benefits including but not limited to: taxes, by allowing joint filing and the creation of family partnerships to divide business income; estate planning, by allowing spousal inheritance, certain exemptions of estate and gift taxes, certain types of trusts reserved for spouses, preference as a conservator if your spouse becomes legally incapacitated; government benefits, including Social Security, Medicare, Disability, military benefits, public assistance, immigration benefits and residency benefits; employment benefits, including insurance, family leave, bereavement leave, wages, workers’ compensation and retirement plan benefits; medical benefits, such as visiting and making medical decisions for your spouse under certain circumstances; housing benefits reserved for families only and/or allowing you to renew housing agreements executed by your spouse; consumer benefits in the forms of family rates/discounts for many types of insurance and purchases; legal system benefits, including suing for your spouse’s wrongful death or loss of consortium, using the confidential communications privilege to avoid revealing confidential communications with each other, receiving victim’s recovery benefits for crimes against your spouse, visiting your spouse in jail; death benefits, such as making decisions for and about your spouse after his/her death; and divorce benefits, such as equitable property divisions, spousal support, child support, child custody and child visitation. All these benefits and many, many more are granted to individuals, simply because they are legally married.
Meanwhile, you are hanging out there NOT legally married to your partner. What, then, are your legal rights when separating from this partner? There’s good news and bad news; mostly bad news. Start with the realization that all the above mentioned benefits conveyed in the areas of taxes, estate planning, government benefits, medical benefits, housing benefits, consumer benefits, legal system benefits, death benefits and divorce benefits have not been granted to you by the type of contract known as legal marriage. Furthermore, you cannot have the rights exclusively reserved for legally married people by the government, the law and the courts: legally married people get those exclusive goodies due to the importance society places on legal marriage; so, you don’t get them. Therefore, your considerably skimpier rights must be created and protected by something else. Makes sense, doesn’t it? That “something else” is also based in contract. That’s the good news.
“Contract” falls along a continuum from private contracts up to and including social contracts. Breach a private contract and you can be sued by the person with whom you contracted, for example. Breach a social contract and you can get traffic tickets or have civil penalties imposed on you or go to jail or even suffer the death penalty, for example. As an unmarried person, your rights must spring from certain private contracts and social contracts. First, two individuals with sufficient legal capacity can privately contract with each other for anything legally enforceable; that gives you plenty of room to make private contracts – written or oral (preferably written) - piecing together your rights and duties regarding the division of assets and liabilities, financial support and issues regarding children, such as custody, visitation and support. Private contracts such as these form the bases of “palimony” and “galimony” and “[fill in the blank]mony” suits between unmarried partners. Consequently, long before any issues of separation can arise, you and your partner should privately contract to handle the division of assets and liabilities, financial support and issues regarding children, such as custody, visitation and support. Mind you, these contracts are ideally but not necessarily written, so if you are separating from your partner and are unsure of whether you have such a contract, consult a lawyer whose expertise is in divorce/family law and/or contracts. Secondly, those same two individuals can also privately contract with some other person or entity, such as a landlord or a bank, for certain rights and duties; consequently, if you wish to protect your rights and duties regarding those relationships, you should ensure that you are one of the contracting parties. As with any private contract, the question remains as to whether your court will legally enforce those rights and duties, and that depends on the contract terms and the jurisdiction. Third, one of you can contract with another person or entity, to set up certain trusts, for example; consequently, long before the issue of separation arises, encourage your partner to contract with others for your benefit. Fourth, social contracts are also in place to automatically give you rights and duties as an individual living in society and often in close quarters with another person. Here, your rights and duties are governed by civil and criminal laws regarding such varying situations as harassment, assault, the right to quietly enjoy premises that you rent, etc. In sum, your legal rights when separating from a partner to whom you are not legally married depend on the private contracts between you and your partner, the private contracts between you/your partner and other persons/entities, and the social contracts articulated and enforced by civil and criminal laws. Your best bet is to consult a lawyer about the steps you can take to create and/or protect your rights and duties.
DO’S AND DON’TS
DON’T be intimidated by the process or the people.
DO get legally married if you have the legal capacity to do so and wish to enjoy the federal and state benefits in such areas as:
b. Estate planning;
c. Government benefits;
d. Employment benefits;
e. Medical benefits;
f. Housing benefits;
g. Consumer benefits;
h. Legal system benefits;
i. Death benefits; and
j. Divorce benefits.
If you cannot or do not wish to get legally married:
a. DO privately piece together as many benefits as possible through private contracts with your partner long before the possibility of separation can arise;
b. DO ensure that you are one of the contracting parties with other people or entities, such as banks or landlords, to secure your rights and duties regarding those contracts;
c. DO encourage your partner to contract with others for your benefit.
d. DO familiarize yourself with the civil and criminal laws in your jurisdiction protecting you as an individual living in society, sometimes in close proximity with another person;
e. DO consult a lawyer about the steps you can take to create and/or protect your rights and duties.
By Kathy Catanzarite
[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]
Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.
FAMILY LAW DOS AND DON'TS