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What You Should Know About Divorce Before Getting Married

Divorce is rarely discussed by newly engaged couples, although roughly half of all marriages end in divorce. So, while no one wants to think about it before they get married, there are some important considerations that can help make the divorce process less of a struggle should it occur. If you’re newly engaged or recently married, the following answers to common questions about divorce will help you make informed decisions as you start your lives together.


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What should I know about child custody and child support before deciding to have children?

Having children is a no-brainer for many couples, who may decide to have a family shortly after marriage. But while marriage doesn’t always last, children born during marriage still need the same level of care and support after a divorce. Even if divorce is the right call for you and your spouse, it can create custody and support issues for you and your children.

Generally, state courts base child custody and support determinations on what is in the best interests of the child. This includes a parent’s ability to provide for their child’s needs and provide a stable environment. The goal of child custody and support is to maintain the parent/child relationship whenever possible and ensure the child’s quality of life remains close to the level it was when the parents were married.

Parents who feel that they may be heading toward divorce can start documenting issues that may factor into these decisions. If you’re a newlywed, then understanding how courts determine what’s best for children could help prevent or alleviate problems in the future. 

What are the fiduciary and legal duties of married couples?

Married couples have a fiduciary duty to one another, which means spouses have a legal obligation to rely on and trust one another (financially and otherwise) throughout their marriage. Many states have laws that require married people to act honestly and fairly towards their spouses. This allows each spouse to have power over the community property in their marriage, assuming that they will act in good faith in regard to what benefits them both as a couple.

Because of this fiduciary duty, one spouse can’t use undue influence to try to coerce the other spouse into making specific decisions in an estate plan or similar legal document. Using such influence in bad faith is considered a violation of the law in many states. Spousal fiduciary duty also often means that spouses must provide each other with the highest standard of care throughout the marriage and work to avoid conflicts of interest.

Legally, each spouse has equal access to documents related to the marriage and marital assets, which means one spouse can’t hide records or other information about their income, assets, and debts. 

What are the marital property laws of my state?

Each state has its own laws regarding marital property, impacting how property is divided in a divorce. Not all assets are commingled in a marriage; “separate property,” as it’s called, may include gifts and inheritances received by just one spouse or items purchased using separate assets.

Some states and territories, including Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Puerto Rico, recognize the concept of community property. This means both spouses own equal shares in the marital property and assets, so when a divorce occurs, it is usually divided equally. A divorce settlement can overrule this, typically only if the couple agrees to the change in terms.

In all other states, marital property is divided based on equitable distribution. This means that the property and earnings are divided and distributed equitably. This legal term means “fair,” but not necessarily “equal.” If one spouse makes more money than the other, it may be deemed fair that the higher-earning spouse gets more of the assets than the other spouse.

Should I sign a prenuptial agreement?

A prenuptial agreement (or “prenup”) is a legal agreement the two parties make before they are married that outlines the terms of property division and other rights should the couple end up divorcing. Prenups make the most sense for high net worth individuals, particularly if they live in a community property state, but they can also be useful for regular folks.

For instance, it can be a helpful tool for couples who have children from other relationships or bring an inheritance or large assets into the marriage. A prenup can help preserve the family ties and beneficiary status of children from previous marriages, protect business assets accumulated before the marriage, and help protect family businesses. The prenuptial agreement examines important financial matters before the couple is facing the frustrations that often lead to divorce, so logical decisions can be made.

Some couples feel that signing a prenuptial agreement indicates they are anticipating a divorce, but this isn’t necessarily true. Even though asking your spouse to sign one can dampen the romance, a prenup indicates that the couple is planning ahead and ensuring the protection of other people and business interests. It can be a wise financial move for high-net-worth couples and couples entering into a second marriage.

Get Prepared Before You Get Married

Couples don’t enter a new marriage with plans for divorce, but divorce does happen. Thinking about divorce prior to your nuptials will help ensure that you’re entering into your marriage with a clear head and may help prevent future disputes. Be sure to ask an attorney if you need legal advice about your marriage, divorce, child custody needs, or prenuptial agreements.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

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