Marriage and Divorce: Frequently Asked Questions

What is the legal definition of marriage?

Marriage is defined as a civil contract between two people who meet the legal requirements for marriage as established by the state, and whose requirements vary from state to state. Usually, to be married two people must be of the opposite sex. However, some states are in the process of changing the opposite sex requirement.

Do both parties need a prenuptial agreement?

Not necessarily, but having a lawyer has the benefits of knowing that the contract was successful and that you have made an informed decision. The lawyer can also guide you when drafting a contract that is beneficial to both parties. Also, a prenuptial agreement made by a lawyer is more likely to be enforceable, because it is written using the appropriate legal terms.

Do I have to have blood tests to get married?

This depends on the state where the wedding will take place, since the laws vary from state to state. Many states have suspended prenuptial blood and physical exams; however, some states still request them for diseases such as rubella, tuberculosis and venereal diseases. In addition, due to the increase in cases of HIV and AIDS, many states offer HIV testing or information on the availability of AIDS tests to the contracting parties. Currently, no state requires prenuptial testing for HIV and AIDS.

Can one of the spouses be held liable for debts that the other spouse incurred before getting married?

Usually the answer is no; However, this depends on the state where the marriage resides. In states where the company of property (common property of both parties) is not recognized, these debts belong to the spouse who contracted them. However, a spouse could, in an extraordinary situation, be legally liable for the premarital debts of the other spouse, if they were in a state that does not recognize the marital property company.

If two people decide to live together instead of getting married, should they have a contract?

Choosing to have or not have a contract is a decision that these two people must make. If a legal contract is concluded, it will be enforceable in the courts of most states. Preferably, you should have a written contract instead of a word contract because a written contract is easier to enforce by the court than a word contract. Determining what bills each person will pay is sometimes set out in a contract.

What does it really mean to be divorced?

Being divorced means that a judge has signed a “dissolution of marriage” in which you state that you are no longer legally married to your spouse. Just as getting married is a “legal” act, so is divorce.

My husband and I have not earned much money and we do not really have a good of much value. Is there a simple way to divorce?

It depends. Some states offer you a simplified version of divorce that could help you. In some states that allow it, it is required that you and your husband have been married for a short time (that is, five years or less), that you do not have children, that you only have a small debt and that you do not have your own home.

What is a QDRO (or qualified domestic relations order)?

A QDRO is a court order that requires the administrator of a pension plan to grant a certain part of the employment pension to his former non-employed spouse after the divorce ends.

Who can issue a QDRO?

Any state agency or agency with authority to issue resolutions, decrees or orders or to prove asset resolution agreements may issue a QDRO.

Who determines if an order is a QDRO?

Under federal law, the retirement plan administrator who provides benefits affected by the order determines if this is a QDRO.

Can a QDRO cover more than one plan?

A QDRO may assign rights to retirement benefits under more than one retirement plan of the same or a different employer, as long as each plan and the assignment of entitlement rights under each plan are clearly specified.

Under ERISA (or Employee Retirement Income Security Act), is there any particular information that must be present in a domestic relations order to qualify as QDRO?

Yes, a QDRO must contain the following information:

  • The name and postal address of both the employed spouse and the spouse who will receive the benefit.
  • The name of the plan to which the order refers.
  • The total amount or percentage (or method of calculating it) of the benefit to be paid to the spouse receiving the benefit.
  • The total number of payments or the period of time the order stipulates.

Talk to a lawyer qualified in Family Law today

This article is intended to be useful and informative, but legal issues can become complicated and stressful. A lawyer qualified in family law can attend to your particular legal needs, explain the law and represent you in court. Take the first step now and contact a qualified family law attorney near you to discuss your particular legal situation.

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