Where to Begin When Getting Married

The excitement and planning of a wedding ceremony may overshadow the more dreary, legal aspects of getting married but they're still crucial and important. Marriage is a contract under the law and each state in the US has its peculiar laws and regulations on how to initiate and formalize that contract. Irrespective of the state in which the couple were legally bound, marriage conducted in one state is acceptable and valid in all states under the full faith and credit clause in the United States Constitution.

In 2017, half of the U.S population ages 18 and older were married, but this is down 8 percent from 1990. Courtesy of Pewresearch.org and the Los Angeles Times

Legal contracts are to meet certain laid down standards. Marriage is no different. Before two people are allowed to marry in any state, they must:

1. Show consent and a sound mind. Each person entering into a marriage must demonstrate that they are not being forced into it, are mentally capable and old enough to make the decision to marry by themselves without the consent of their parents. In all states except for Mississippi and Nebraska the age of consent is 18 years old. Persons who are up to 16 years old may be able to marry with parental consent in most of the states. A person younger than the age of consent may be adjudged as not mentally capable to marry.

2. Visit the office of the County Court Clerk/Town Hall to obtain a permit to marry. Marriage license is one of the most important paperwork required when tying the knot. It provides the legal nod that the couple is free and allowed to marry. It does not confirm that the couple must marry or that they are already married, it only provides the legal permission for the couple to conduct a marriage ceremony and be joined in matrimony by an officiant. In North Carolina, it is issued by the Probate Judge.

In some states, it may serve as the confirmation that the marriage has taken place but only when it has been signed by the officiant and witnesses and filed with the local records office. The rules and regulations for obtaining a marriage license may vary from state to state and county to county within a state. It is important to obtain the license in the state and county where either of the couple lives or where the wedding ceremony will be officiated. Marriage licenses are usually valid for a specific period of time. It might be more economical to contact the issuing office before the set date for the wedding ceremony to find out how far in advance the license may be obtained, the waiting period for obtaining the license, and the necessary cost attached to obtaining one.

Depending on the state, requirements for obtaining a license often includes:

• Valid identification

• Proof of residence

• Birth certificate

• Proof of divorce (if applicable)

• Proof of parental/court consent if underage

• Death certificate (if widowed)

• Some states also require a witness (a person who knows either of the couple very well for at least six months)

• Payment of applicable fees

One or both couple may be required to appear in person to apply for the marriage license. In some states, and counties like the Delaware County, Pennsylvania, provision is made for an online marriage license application.

3. Recording the Marriage License. The fun part of the wedding is not without its formality. The marriage license must be signed by the main officiant (where there are several), as well as the couple and their witnesses, after they have been joined in marriage. The officiant is required by law to file the signed license with the appropriate local clerk for recording. It is important to ensure that the officiant (religious or traditional; priest, rabbi, ministers, person recognized by the customs or traditions) has been ordained with the legal authority to marry a couple otherwise, the marriage may be declared invalid by the courts. In civil ceremonies, a judge or a county clerk or other government official may officiate at the marriage ceremony.

Once the marriage is duly recorded, some states will issue the couple a marriage certificate or the marriage license with the proper authority marked on it as a legally recognized proof of marriage within a specified period. In Los Angeles County like some others, the marriage certificate is not automatically issued to the couple. The couple must submit a marriage records request at the same time the license was sent in for recording, if they would like a certified copy of their marriage certificate.

In 2013, up to 23% of marriages had at least one spouse that had been married before. Courtesy of Pewresearch.org

Why Obtain a Marriage Certificate?

Marriage certificate is a vital document. After the marriage ceremony, the couple may need to make several legal changes which affect them as a couple and as individuals. The marriage certificate will often feature in many of those changes as proof that they are indeed legally married. The changes may include renewal of passports and other identification cards, change of name, bank information, acquiring property or amendment of ownership information, obtaining a work permit and immigration processes (where applicable), health insurance information, taxes and as supporting document for meeting requirements stipulated by government and/or private organizations where proof of marriage is required.

The marriage record for each couple consists of information relating to their marriage and information supplied by them on the relevant marital documents including the marriage license and the marriage certificate. While access to marriage records is public, and one can obtain vital information on them from trusted websites like StateRecords.org, certain information contained in the marriage license and certificates are not open to the general public. There are two types of marriage records obtainable, informational records and certified records.

What is the Difference between Informational and Certified Copy?

Informational copies of a marriage certificate cannot be presented or used as an original document when required for legal purposes or required by a governmental organization. Generally, the certified copy is only accessible to either or both of the couple or their immediate family members (children, parents, grandparents) or someone who is authorized by the two persons whose marriage is recorded on the certificate. It is also the valid copy of the marriage certificate that can serve as a legal representation and proof of the marriage between two people. It is advisable therefore that the couple obtains a certified copy of their marriage certificate. It is possible to obtain several certified copies. Online services like StateRecords.org provide an effective solution for marriage license records.

Each State has set out rules and procedures for obtaining a certified marriage certificate. It is always advisable to find out what is required in the state or county where the marriage was recorded. Generally, the applicant will be required to provide information about themselves, show proper identification and authorization (where required), and the details of the marriage certificate they are requesting; date the marriage took place or was recorded, names of the couple, and other relevant information. The applicant is also required to pay the charges for issuing a copy, whether certified or informational and is also asked to declare that the information will not be used for commercial purposes, especially when it is being obtained by persons other than the couple.

What Is the Difference Between A Civil and A Ceremonial Marriage?

Apart from the laws guiding marriages generally in a state, many states also have laws regulating the marriage ceremony itself and who may officiate and sign the marriage documents.

Once a couple have determined that they are legally able to marry, they may choose in what manner to celebrate their union, whether in a civil ceremony or a religious ceremony. Whichever one they choose, they must sign a legal marriage document to have a legally binding and valid marriage.

• Civil ceremony: A civil ceremony is legally recognized and usually conducted by a local official including a registrar, magistrate, county clerk, justice of the peace, notary public, mayor or a judge. It takes place in an official building or location, like the city hall or registry office, the court house. There are reasons people choose to have a court marriage, the main one being to have a legally valid union. A court marriage may also be cheaper and may take lesser planning and coordinating to achieve compared to an elaborate ceremonial wedding.
  In civil ceremonies, the official follows the provisions of the law in charging the couple to pledge their vows as provided by the law and many have no room for personal touch or flowery vows or religious undertone.

• Ceremonial wedding: A ceremonial wedding may be a religious, non denominational, interfaith, or commitment ceremony.

  1. Religious ceremonies are usually conducted as required under a specific religion and often reflects the faith of the couple, whether Pagan, Jewish, Christian, Muslim, etc. Unless the religious house, priest, Minister, Rabbi, Imam, etc is certified by the law to officiate a marriage ceremony, a religious wedding may not be automatically legally valid. In such cases, couple who have certain religious weddings also have a low key civil wedding to make certain, their marriage is legally recorded and recognized.

  2. Interfaith ceremonies and non denominational ceremonies are designed to incorporate the couple’s differing religious beliefs or denominations.

  3. Commitment ceremonies are adopted by couples who want to vow commitment to each other in public and celebrate their relationship without the formality of a legal wedding or whose marriage may not be recognized by law. Commitment ceremonies are not legally binding and may be officiated by anyone including friends and family of the couple or even a religious leader.

What are Prenuptial and Postnuptial Agreements?

People enter into a marriage with different financial status and some consider it important to adequately clarify their status and prevent a legal battle over property or certain wealth, debts and spousal support in the event of a divorce, and inheritance if one of them dies. Certain default rules of court would usually apply when couple divorce or one of them dies. A prenuptial agreement allows the couple to decide beforehand, how their property and finances will be dealt with and avoid the default rules taking effect to the detriment of either party. A premarital agreement would usually spell out the property owned by each potential spouse and the rights of ownership and access to that property by either of the couple if the marriage ends. Although it is made beforehand, a premarital agreement only takes effect after the couple is married. When this sort of contract is entered into by the couple after the marriage, it is described as postnuptial agreements.

Amazon CEO Jeff Bezos and his wife, MacKenzie married without a prenuptial agreement. She earned a $36 billion divorce settlement, making it the most expensive divorce in history. Courtesy of Vox

Although prenuptial agreements (also known as antenuptial or premarital agreements and prenup for short) are often associated with the maintenance of premarital financial status of each couple during a divorce, they can also be useful during the course of a marriage and in planning the couple’s legal estate and inheritance.

During the course of marriage: A couple may enter into a prenuptial agreement to simplify their financial rights and obligations while married to each other, irrespective of their individual financial status or financial changes that may occur while they are married. This provides confidence to some couple and removes any ambiguity with who is responsible for what.

Prenuptial agreements can also be useful in protecting the couple’s joint property or funds from being acquired by creditors or used to settle the premarital debts of one of the spouses and help determine in advance how debts accrued during the course of marriage will be distributed or paid off, such that neither spouse A nor B is forced to pay off the other’s debt.

When planning legal estate or inheritance: People about to enter into a marriage with children and responsibilities from previous marriages may adopt a prenuptial agreement to make a legally enforceable provision in their estate for all their dependents or even adult children from a previous marriage in the event they pass away in the new marriage. The prenuptial agreement can state what percentage of the property goes to the children from a previous marriage, especially when the decedent spouse has not left a will, and still maintain fairness to the surviving spouse in accordance with applicable laws of each state on the percentage to which the widow or widower of intestate spouse is entitled. A prenuptial agreement does not take the place of proper estate plan, it may be complementary to it.

What Makes Prenuptial Agreement Binding?

Prenuptial agreements are legal contract and must meet legal requirements to be binding on either or both parties and enforceable under the law. The states in the US make laws and regulations regarding prenups, as such every state has its unique provisions and application on the minimum requirements expected of a legal and binding prenup.

However, many states have adopted the Uniform Premarital Agreement Act (UPAA or Act) which is an act provides some uniformity in how states determine the standards for enforcement of premarital agreements.

In 2015, one-in-six newlyweds were married to someone of a different race or ethnicity. Courtesy of Pewresearch.org

The applicable law to premarital agreements in California Is the family code. Before a premarital agreement can be considered enforceable, it must meet some minimum requirements including:

1. Being in writing

2. Be Voluntary: If either of the parties shows that they did not freely enter into the prenuptial agreement, and that they were not represented by an independent legal counsel or did not waive the right to be represented by an attorney in writing at the time of signing the agreement. It is important that each couple retains their own attorney separate from the family attorney to advise them on the prenuptial agreements before they sign.

3. Reflect that the parties have fully disclosed their financial status and liabilities: Each spouse must declare their assets and liabilities to the other spouse in the prenuptial agreements before it is executed. The court may not enforce a prenuptial agreement if the spouse against whom it is sought to be enforced claim they did not have full and fair information of the property and financial obligations of the other spouse and they did not waive the right to full disclosure in writing. Also that they could not have reasonably had knowledge of the other spouse’s property or financial obligations.

4. Be free from manipulation and signed by competent persons: If the prenuptial agreement was signed by a spouse who at the time of signing the agreement, had no mental capacity(too young to fully understand the implications of the document), was under undue influence (Signing out of fear,or belief that the other spouse has some hold over them), or was under a different impression due to the fraudulent actions, position and information from the other spouse, the prenuptial agreement would be considered invalid.

5. The court would usually not enforce prenuptial agreements that are considered to be against public policy. For instance, any provisions:

   • Dictating how the spouses’ future children will be raised.

   • Requiring one spouse to perform certain domestic services.

   • Stating punishment for actions or lifestyle of a spouse (often adultery).

   • That require the spouse to live up to some religious or traditional expectations.

   • Appear fraudulent.

   • Are one sided (provisions that benefit one person more and puts the other in a vulnerable position).

6. The Court will also not enforce provisions relating to child support and child custody. The courts have sole jurisdiction to make decisions relating to child support in the best interest of the child irrespective of the agreement between the spouses. However, the court may consider the agreements between the parties during a divorce proceeding in reaching its conclusions.

A good prenup is designed to benefit both spouses and their marriage therefore, terms limiting or waiving spousal support (Alimony) are unenforceable.

Are Prenuptial Agreements Public Record?

Generally, information relating to the finances of couples are not accessible to the public. However, a person may be able to confirm whether or not a couple has entered into a prenuptial agreements depending on the State and in which local records authority the attorney who prepared the agreement has registered the document.