Legal Guide to Getting Married

Are you a newlywed or recently engaged? This guide is for you! Learn all the practicalities about getting married and which legal documents you will need to update, change, or simply toss.

Marriage Certificate

Each State has its own marriage certificate process. Typically, there is a fee associated with obtaining the license to get married. This license must be signed before it becomes a marriage certificate. Typically, after the marriage ceremony, an officiant signs and returns the marriage license to the County that issued it. Once the County records the license, it turns into an official marriage certificate that you and your new spouse will get a copy of via the mail.

This is an important document and you will want to keep it in a safe space. If your marriage certificate is defective due to problems with filing or signatures, most states have methods of perfecting or correcting the defect, but it’s best to check your local rules.

You’ll need a certified copy of your marriage certificate (or the document you receive from your state or county after filling out your marriage license) before changing your name.

Change of Name

Many individuals choose to change some part of their middle or last name when they get married.In order to do so, you will need to notify a variety of state and federal agencies. A good place to start is contacting your local Social Security Administration office to update your Social Security Card.

To do this, you can make an appointment with your local office and fill out the SS-5 form needed to change your name. Bring original copies of your (1) birth certificate, (2) passport, (3) diver’s license, (4) Social Security Card, and (5) your marriage certificate.

After you update your Social Security Card, you can use the new social security Card to change your name on other documents and accounts such as your:

  • drivers license
  • passport
  • voter registration
  • Title and Registration of your car
  • Bank Accounts
  • Employment documents
  • Retirement Accounts
  • Insurance information
  • Credit Cards
  • Memberships (gym, Netflix, hunting club).
  • Social Media Accounts

To update your passport, you will need to get a color passport photo and send that in along with your current passport and a certified copy of your marriage certificateYou may want to request an additional certified copy of your marriage certificate before you apply for a new passport because you have to mail in a certified copy of your marriage certificate and it can take time to get your copy back. (see form DS-82.)

Another great tip is to order new checks, debit cards, and credit cards as soon as possible, because they can take a long time to arrive.

Beneficiary Designation

Even if you don’t change your name, it’s a good idea to look at your beneficiaries on your retirement accounts, life insurance, and any other bank accounts. Consider updating these designations to your spouse.

Taxes as a Married Couple

If you get married at any point in 2016, you are now required to file taxes either as married filing separately (MFS) or married filing jointly (MFJ) for any income you earn in 2016. What this means is that when you go to file taxes before April 2017, you will no longer have the option of filing as a single person.

For most couples filing a tax return as married filing jointly provides a beneficial tax outcome. Married couples filing a joint return can claim two personal exemptions instead of one and can use a standard deduction of $12,400 verses the single taxpayer deduction of $6,200. You can also choose to itemize your deductions for benefits like mortgage interest payments.

Another benefit of getting married this year is that spouses can give each other unlimited gifts without the gift tax limits.

If you and your partner make relatively similar amounts and do not have children, you may be impacted by the marriage tax penalty. It’s important to check with a tax professional when making choices about your filing status.

My marriage license was never turned in by the officiant, am I married?

Yes, under most circumstances, even if you had a technical defect in your Marriage License you are legally married under California family law.

The typical process for filing a Marriage License and Certificate looks like this:

1.     The Parties apply for a license,

2.     The wedding ceremony occurs,

3.     The officiant sends the license back to the County Clerk,

4.     The officiant then signs the registration, turning the Marriage License into a Marriage Certificate,

5.     The County records this document with the County Recorder’s Office.

6.     The County Clerk sends all original confidential marriage certificates retained, or originals of reproduced confidential marriage certificates filed after January 1, 1982, to the State Registrar of Vital Statistics (Family Code § 511).

If you have a wedding ceremony in California and you have applied for a marriage license, you are most likely married under California family law even if you fail to send in that license to the County. This is because there is at least one family law case that holds that registration of a marriage certificate is not essential to the validity of a marriage. In 2011, an Appellate Court found that parties who, after marriage ceremony in 1991, submitted marriage certificate for registration that was twice rejected for technical defects and was not resubmitted, and who were married in new ceremony about 10 years later, had been married for 17 years at time of dissolution of their marriage in 2008. In re Marriage of Cantarella (2011) 191 C.A. 4th 916, 923.

There is also a California Health and Safety Code section (§103450) that specifically allows for a party to bring an action requesting an order judicially establishing the fact of, and time and place of, the marriage. The definition of a party includes: “[a] member of a law enforcement agency or a representative of another governmental agency, as provided by law, who is conducting official business.” Health and Safety Code 103526(c)(2)(C).

What does that mean? Well, being married under California law requires you to file taxes with the State and Federal government as married. IRS Publication 17, page 20 states: “State law governs whether you are married or legally separated under a divorce or separate maintenance decree.” 

It also means that you will have to use California's dissolution rules in the family code if you decide to formally and legally separate. 

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Marriage, Divorce, and Taxes: Why December 31st 2015 is different than January 1st 2016

Getting married in 2015? Or considering finalizing your divorce in 2015? Your status makes a difference for your taxes.

The most important thing to remember is that your marital status on the last day of the year (December 31, 2015) determines your marital status for the entire year for the purposes of income tax filing.

Married in 2015?
First, let’s go over some of the IRS rules and benefits for all of those couples getting married this year.  
If you get married at any point in 2015, you are now required to file taxes either as married filing separately (MFS) or married filing jointly (MFJ) for any income you earn in 2015. What this means is that when you go to file taxes next April, you no longer have the option of filing as a single person.
For most couples filing a tax return as married filing jointly provides a beneficial tax outcome. Married couples filing a joint return can claim two personal exemptions instead of one and can use a standard deduction of $12,400 verses the single taxpayer deduction of $6,200. You can also choose to itemize your deductions for benefits like mortgage interest payments.
Another benefit of getting married this year is that spouses can give each other unlimited gifts without the gift tax limits.
All being said, the change in status is not necessarily a win for many professionals as the marriage penalty can start to impact your tax rate. You can determine if you are going to be impacted by the marriage penalty.  

Divorced in 2015
Under the IRS rules, your marital status on the last day of the year or December 31, 2015 determines your marital status for the entire year.
In California, the Court will not issue an official decree of divorce before 6 months from the date of filing and serving of the Petition for dissolution (California Family Code 2339). This means you need to start the process (file) before July 1st.
It is important to remember that most of the biggest taxable events are not necessarily part of the divorce process itself, but actually occur in the years that follow as a result of the divorce settlement, like the sale of a home, capital gains, and who will be able to claim the children as dependents. These won’t really be affected by whether you get divorced in 2015 or 2016.
Here are some common tax credits and exemptions that could impact your decision to file before June 30th, 2015, though:

If you have children, one important tax issue to determine who will take the deductions for a dependent child. This is because the tax implications are important. For each dependent a parent can deduct $3,900 from their federal taxable income.  In order to qualify, the child must live with the parent claiming the exemption more than half of the year and be under the age of 19 at the end of the year. Often parents will alternate who gets to claim the exemption from year to year.

If you are able to get a final divorce decree by December 31, 2015 and file as single another benefit may be that one spouse can claim Head of Household. In order to qualify for this status, you and your ex must have lived apart for the last six months and the claiming parent also has to pay more than half of household costs. In this case, the other spouse files his/her return as single.

Another tax benefit to be aware of is the payment of mortgages.  The person who stays in the marital home may be able to take advantage of one of the most popular tax credits which is the mortgage interest deduction. The mortgage interest deduction is the part of your monthly payment that covers the interest you pay on the mortgage.

Property Taxes
The last issue to be aware of is property taxes. If both parties have made any estimated property tax payments this year, then you have two options. First, one party can claim all of the payments or second the payments can be divided between the parties pursuant to an agreement. These payments should be reflected on your tax return.
Tax issues can be complicated, especially when you are changing your filing status from married to single. Consult with a family law attorney and tax professional to make sure you are aware of the risks and benefits associated with changing your tax status.

What law governs prenup agreements?

Experienced Bay Area Family Law attorneys will tell clients that premarital and preregistration agreements are recognized under California law (Fam C §1500) and are governed by the Uniform Premarital Agreement Act (Fam C §§1600–1617) (the Act), except to the extent California has modified the terms of the Act, and by Fam C §§1500–1503 (addressing both premarital and other marital property agreements). 

A premarital or preregistration agreement is defined as an agreement between prospective spouses or domestic partners made in contemplation of marriage or registration, to be effective on marriage or registration. Fam C §§1610(a), 1613. A premarital or preregistration agreement must be in writing and signed by both parties. It is enforceable without consideration. Fam C §1611. It may be amended or revoked after marriage or registration only by a written agreement signed by both parties. Fam C §1614.


Learn more about prenups here.


Legal Guide to Elopement

Feeling romantic and spontaneous after the recent Supreme Court decision on gay marriage? Itching to tie the knot with someone special? You are not alone. The Supreme Court of the United States recently proclaimed in Obergefell v. Hodges that,

[m]arriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm…. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

But don’t move too fast. Here are five important legal issues to keep in mind if you are considering eloping with your sweetie to the nearest chapel:

1. You Need A Marriage License

Each state has different standards for obtaining a marriage license. For example, in California, both parties must appear in person and bring valid picture identification to the County Clerk’s Office to apply for a marriage license.

In some states, like Louisiana, there may even be a waiting period of up to three days before and after receiving your marriage license.

You may have heard that you need a blood test to get married. This is mostly myth. However, until recently, some states, like Mississippi, required a blood test to obtain a marriage license. However, today you can get married in most states that used to require a blood test by simply waiving the blood test requirement through informed consent.

2Prepare for the Costs

The cost of a marriage license varies state by state and can be reduced by your own level of your preparation.

For example, Georgia has a program where all fees associated with your marriage license can be waived so long as you show proof of completion of an approved premarital counseling course. Generally, fees for marriage licenses are around $100 to $200 with the fee for the license and any subsequent copies. But buyer beware: as cheap as getting married may be, divorce is still very expensive and filing fees for divorces are rising to $450 in some counties in California.

3. You will need an Officiant

The person who marries you is called the marriage officiant, and this person can be a clergyperson or otherwise authorized individual. Remember how Joey married Monica and Chandler in Friends? Depending on your state, many different types of individuals are authorized to perform weddings, including ship captains and Medicine Men or even shamans.

In California, anyone who officiates a wedding is required by law to complete the marriage license and return it to the County Recorder’s office within 10 days of the event for registration. Each state will have its own requirements so be sure to check with your state and county on who can officiate your wedding.

4. Elopement means alone, right? Wrong.

Nope, some states require that you must also have at least one witness present at your ceremony. These requirements are varied as other states required at least two witnesses, and some states, like Florida, do not require any witnesses. It is best to check with your local county to be sure about the witness requirement.

5. Make sure you do your homework.

Depending on your state you may have to read information about marriage and make a sworn affidavit before obtaining a marriage license. For example, in Florida all newlyweds must certify that they have read the Family Law Handbook created by the Family Law Section of the Florida Bar.

While many states do not require this step, as a family lawyer, I recommend that everyone consider aprenuptial agreement or at least understand what your state’s property laws entail upon dissolution before taking the plunge. Elopement and prenups are a bit antithetical as California requires that (1) Both parties must be represented by separate independent attorneys, (2) disclose fully their finances (including any assets and debts), and (3) the final form of the agreement must be in the hands of each party at least seven days prior to signing the document. The prenup requirements can put a damper in the honeymoon planning, but as a family lawyer, I’d rather be safe than sorry.

Enjoy the summer wedding season and plan accordingly!