5 offbeat marriages that may benefit from the assistance of a lawyer

February 11 2013 | Guest post by Dara

photoVenue, check. Rings, check. Love of your life, check.

All that's missing now is a trip to see your lawyer.

Look, I know what you're thinking… because I'm a lawyer when I'm not being a bride, and I hear it all the time. Seeing a lawyer isn't like a cake tasting or interviewing a band. It's not fun. It acknowledges some very unromantic things about getting married at a time when what you need most is to enjoy each other so you don't kill each others' families.

If you identify as an offbeat couple, however, you probably have some unique issues with the family your marriage will create that shouldn't be put off until after the last drunk cousin is shooed out of the reception after-party.

If your offbeat relationship fits one of these five categories, you'll want a consultation with an attorney licensed in your state ASAP, not after you start getting RSVPs.

1. LGBTQ couples

Marriage and civil union laws for same-sex couples are a complete patchwork in the United States. Many couples don't realize that even if they are legally married in one state, their marriage may not be recognized where they live. This isn't just a question of civil rights and basic fairness, it also impacts being able to make decisions about shared property, health care, children, and so much more. Even if same-sex marriage is allowed in your state, you'll want to ask an attorney if other laws in your state that impact married people apply to you.

If one or both of you are transgender, you'll want to be sure you can get a marriage license in your preferred name and gender identifier with the identifying documents you have.

2. Polyfidelity

If you thought explaining your poly ceremony to your great-aunt Rose was difficult, imagine having to explain it to a judge. This is one of the few dark areas of the law where a relationship is legal but a wedding recognizing the relationship is a crime. There are laws against polyamorous marriages in every state, though enforcement is very spotty.

To protect who and how you love, talking to an attorney who understands the family you're building and the risks you're taking is essential. It's even more important to speak to an attorney about child custody and child support if you're planning on having kids with your partners or already have kids with someone else. There's virtually no automatic protection for all of your partners, but a creative, understanding attorney can help you build the protections your family needs in ways other than getting married.

3. Married after having kids with each other

Lots of couples have already built a family with children together before they get married. Don't make the mistake of thinking your marriage license is just a piece of paper — it actually fundamentally changes your legal identity in your state and under federal law and may impact your kids as well.

Talking to an attorney about the benefits to you as legally-recognized couple and family can help you take full advantage of your celebration.

4. Married after having kids with someone else

Getting married can affect terms of a divorce or prior child custody and support agreements. The fact that you have children from a previous relationship definitely impacts property you own with your spouse and what happens to it when you pass away.

It doesn't matter how good your relationship with your child's other parent is, agreements that aren't recognized by the law are unlikely to be enforceable.

5. Married after one or both of you have established careers

"Yours, mine, and ours" isn't just about kids. Some of the messiest, most complicated problems I've addressed for families in my law practice could have been prevented by sitting down for an hour or two and deciding what to do about the property each spouse had before the marriage, and who was going to pay for/own property bought after the wedding.

Talk to an attorney before you start blending together property you had before "I do." While getting a prenuptial agreement may sound cynical and anti-romantic, remember that you're also forming a financial partnership you expect to last for the rest of your life. You would carefully consider co-signing on a loan for a family member or starting a business with a friend, wouldn't you? Then give your marriage partnership the same kind of consideration by talking about the property, debt, and financial expectations you each have with an attorney who can help put those expectations into a clear, understandable agreement.

Now that you know you may need to talk to a lawyer, how do you find one?

Not all attorneys are created equally. For issues like the ones above, you'll want to…

  • Look for someone with experience in both family law (divorce, child custody, child support) and estate planning (wills, trusts, advanced health care directives) and, most importantly, someone cool with the kind of family you're building.
  • The internet is your friend. Look for attorneys who are members of groups that address offbeat family issues or have written articles or blog posts about them.
  • Call around, be up-front about what your family is like and what questions you have.
  • Don't be afraid to ask for a free consultation.
  • And above all DO NOT apologize for your offbeat union. The right lawyer won't make you feel like you need to.

Above all, remember that talking to a lawyer before you get married is like gel inserts in your dancing shoes: it's certainly not the most romantic part of the wedding but it can help start off your marriage in comfort and confidence.

  1. Thank you so much for this post!! I definitely identify with the last two. My fiance has a child from a previous marriage and I am well established in my career. So we have a lot of things to work out. I appreciate this advice. I think I can convince him to see a lawyer now that it was on OBB instead of my mother nagging! 😉

    3 agree
    • Thanks for the kind words, Amber. I often tell my families that the only thing I can do for them is help them start a conversation about what they want and write down the decisions they come to in a legally enforceable way. My job is the easy part – it's the conversation that can be hard. There's a lot of unfortunate cultural baggage that comes with consulting an attorney before getting married. I hope you can find one who can help make your fiance more comfortable with the process.

      1 agrees
  2. Hey! You live in the same town as me! If I ever need a lawyer for any of the reasons you mentioned above, I'll keep you in mind.

    1 agrees
  3. My husband and I wrote a prenup with the help of a free online site– we've been married over a year now, should we actually see a lawyer, or will this hold up in court?

    • That depends entirely on where you live and what your agreement looks like. Many states, like the one where I practice, have very specific laws about what must be included to make a prenuptial agreement valid, including having witnesses to your signatures and the document being signed a certain amount of time before your wedding. Some states, like mine, allow for post-nuptial agreements, which are property agreements you can make after you're married.

      I love free legal information and I think it should be more accessible to everyone, but I have a real problem with free or low-cost legal documents and it's not because I usually end up having to fix them for people who use them. Some of them are perfectly fine. The problem is that they don't come with what you really need, which is the advice of an attorney about what you need to do to accomplish your goal. It's like getting a Happy Meal with a bag and a toy but no burger and fries inside – you have the long-lasting part of the deal without the nutritive substance.

      If you have any questions about your prenuptial agreement, you should definitely contact an attorney who practices family law in your area. It won't take very long to get an answer – I can usually tell within a minute or two of looking at a document whether it does what someone wants it to do. Good luck!

      8 agree
  4. OH MY GOODNESS so important. My hunk o' and I are an opposite sex couple and since I'm a lawyer too and work with a lot of LGBT peeps, I knew the happs. Last year we got power of attorney'd up. Health care and financial. If we're ever to have kiddos, back to the lawyers to make sure that everyone is protected, no matter if we stay together for a million years or leave each other tomorrow.

    I work to make sure that legal safety doesn't have to be the terribly expensive privilege that it is, but if you can afford it (and it can be as cheap as $60 for each of you to get a power of attorney set), then PLEASE please protect yourself and your family.

    I would also advocate that all aging peeps see an attorney to set up their powers of attorney and end of life plans. It is NEVER to early to establish who you want to make those decisions, especially if your family is at all OffBeat. In the absence of direction, the state will determine who makes the decisions for you, and that's not always the best option for everyone.

    8 agree
    • Great point, Heron. I gave a CLE about Health Care Directives for attorneys who generally don't deal with them (to prep them for a free legal/medical clinic day our wonderful MCC put on) and ended it by telling them that now that they knew what to do, they needed to do them for their new clients for free. I've never heard a quieter bunch of lawyers!

      Thankfully, many states have a solid, if very basic, set of free form documents that can help protect the ability of people to make health care choices, even when they're too sick to communicate. Missouri's are available online through the Attorney General's office.

      1 agrees
  5. My dad just got remarried and I wholeheartedly agree about talking to a lawyer thing. The issues aren't just with young kids either. I'm a grown woman but what happens if my dad or his new wife pass away? Or, worse, both of them do? What if, heaven forbid, they split up? They both have adult children (I'm an only child, his new wife has 3 kids). Having this stuff nailed out before the marriage makes everyone's life easier. We dealt with a similar issue when my great aunt died after marrying late in life to a man who had children. My family spent a lot of time cleaning out their house once she died, trying to determine what had belonged to his first wife (and should probably go to his kids), what was shared, what do they do with the estate.

    Even having one partner who is going to stay at home and the other working is way more complicated now. My parents spent a long time dividing assets when they divorced, even though it was totally amicable.

    3 agree
    • Exactly right. It gets even more complicated when someone dies and they had a will or other plan for their property that dated back to when they were married to someone else. This is also why I recommend finding someone who has experience with both family law and estate planning.

      My rule of thumb is that if an event happens in your life that's big enough that you might reasonably expect a party in your honor where you work (i.e. wedding, child birth or adoption, big promotion, retirement – but probably not your birthday or anniversary)then there's a good chance your individual and family goals have changed. Check in with a lawyer.

      5 agree
      • As a current 3L and (hopefully) future collaborative practice family and trust/estates planning attorney, I love your rule of thumb!

        3 agree
  6. For people who are worried about the legal aspects of being in kinky or poly relationships, I really recommend at least taking a look at the National Coalition for Sexual Freedom. They have a kink aware professionals directory that includes marriage counselors, lawyers, therapists, etc. And this can help prevent you going to a professional who doesn't understand or actively opposes your relationship. … https://ncsfreedom.org/resources.html

    9 agree
  7. Another category that could be added to your list is marrying someone from a different country.
    Although I made it through the immigration process without a lawyer, nearly every other international marriage couple I know has hired a lawyer to help them through the paperwork

    4 agree
    • Ohhhh, yes. This comes with its own set of legal challenges.

      I get a lot of questions about how people can keep a same-sex partner in the country, and I wish I had more and better answers. This is one of the rights that's extended to people in an opposite-sex couple in the United States that is routinely and unfairly denied to legally married couples of the same sex under the Defense of Marriage Act (DOMA). Two drunks who have known each other for an hour can stumble into a wedding chapel in Vegas and have more rights granted from the federal government than loving spouses of many years, just because their drivers' licenses have an "M" and an "F" on them.

      Immigration is a highly specialized area of the law. Even if you're very clever (that's you for sure, Mich) talking to an attorney before you begin the process just to have an idea of the overall time and cost may save you a lot of confusion and heartache.

      3 agree
    • I'm an American girl planning to marry a Canadian girl – luckily immigration to Canada will be fairly straightforward; America for her, not so much.

      However, do you or anyone else have advice on WHERE to see lawyers? Do we need to see one from each country, or would it be feasible to find someone in one or the other who could talk us through things from both sides?

      • My husband sponsored me into Canada a couple years ago. Very easy process, just time consuming getting the application together!

        Not sure about the Lawyer. My husband and I have been seriously slacking on finding a lawyer.

      • You'll want to see a lawyer in the country where you're planning to live after your wedding. If you live in one of those places along the US/Canada border like Niagara or Seattle where the country in which you live may change with your jobs or cost of housing, 1) I'm jealous, 2) you may want to pursue dual citizenship for both of you. If you have more of a long-lasting choice, I'm not sure why you'd both need dual citizenship. I'd go with Canada. Your immigration process will be easier and the way may be significantly cleared for your wife getting US citizenship in the next few years by the US Supreme Court overturning the Defense of Marriage Act (DOMA).

        If you live in one of those areas I described where dual citizenship for both of you makes sense, I think you'll be able to find an immigration attorney who can help you with the process for both, though I think it's probably pretty rare for lawyers even in those areas to have licenses to practice in both countries. Since your US immigration process will probably be more complicated, I'd go with someone licensed in the US, if you have to choose.

        1 agrees
        • Thank you thank you thank you! What you said makes a lot of sense. We are probably going to end up in Canada (for her job) but we'll know for sure this summer. We have time to plan this kind of thing, thankfully. I'll add it to the long list of things to get done when we know. 🙂

  8. When it comes to Marrying after having kids with each other, what would a lawyer be needed for? I never thought about that. My fiance and i have been together for 6 years and have two kiddos. They both have my fiance's last name. How does that affect our kids?

    • Great question, Hannah. I can already tell I'm going to be saying this a lot, but it depends on where you live. Just because your children have your fiance's last name and he's clearly their dad doesn't mean he's necessarily considered their legal father – even after the two of you are married. This could cause a major problem for him if something happened to you, especially if he's not listed as a parent on their birth certificates. How does someone forget to sign in the hospital that they're the father on their own child's birth certificate? It happens all the time to soldiers who are deployed when their children are born. While that's something that can generally be done later, it gets lost in the thousand other things that need to be done with a new baby. Not being the legal father could also have an effect on things like your kids ability to claim Social Security benefits if something happens to your fiance.

      In my state, there are several possible routes to establishing a man as a legal father, some requiring an order of the family court. Many laws that have an impact on families are based on only one concept of a family: a man and a woman having biological children with each other after marriage. If you can't say with 100% certainty that your fiance is the legal father of your children, a call to an attorney in your area may help clear up any questions.

      3 agree
      • So if I'm absolutely certain he's the legal father, then I wouldn't need to see a lawyer, right? I'm in a similar situation. We've been together for many years and have two children, both of whom have his last name. He is on both of their birth certificates and they both receive health insurance from his employer. I honestly do not understand the need to see a lawyer.

        • In some states any children had before marriage are not considered "naturalized". For example, in Georgia if a child is born before the parents are born, the mother forever remains the sole custodian and guardian. Even if the father's name is in the birth certificate, if the father wants the child legally naturalized then he needs to go to court and fill out the appropriate paper work. This may not affect you personally but depending where you live, in the case of you ever divorcing, he may end up not having any rights to his kids. However, if you live in a state where this is not true then you don't need to worry about it.

  9. I am a transgender person and I will be able to marry my partner because we are legally an opposite-sex couple – would you recommend still speaking with a lawyer if I do not plan on having my legal gender marker changed and likely will not have my name legally changed either (at least not for a while/after we're married)? Thanks!

    • Congrats, Coley! I know many couples who have taken advantage of that particular gender marker loophole in bans on same-sex marriage. I also know that the only reason bigoted state legislators haven't closed it is because they don't know the wonderful couples I do. I hope they stay ignorant until everyone can marry the person they love.

      This isn't legal advice so much as advice based on something I've seen couples encounter, but calling/visiting ahead before you go in to get your marriage license is a good idea. You are 100% correct – you can't be legally denied a marriage license on grounds that you and your wife go against your state's ban on same-sex marriage. You can, however, get in a terrible fight with the county clerk on a day when you should be celebrating. Obtaining a marriage license is one of the things that frequently gets relegated to the background of wedding preparation because hetero and/or cisgender couples don't really have to worry about not "looking like" they can legally marry. Especially if you're getting your license in a county where you may be the first transgender person the clerk has seen apply for a marriage license.

      If you're planning on legally changing your last name (or both spouses' last names) getting married can be a way to do it for free. Changing a name is usually a process that's legally simple but time consuming and expensive because most states require that the proposed name change be published for several weeks/months in the paper. If you and your wife want to take the same last name or combine last names in the future, you might just want to jump on it now. You can take your time after the wedding changing things like your Social Security card, license, bank accounts, etc. If you may be changing more than your last name in the future and you're unsure about your last name now, you're probably better off waiting and changing it all at once.

      After marriage, y'all may want to see an attorney to talk about securing your ability to be with each other in the hospital, make medical decisions, and protect your right to grieve you when the other passes away. Just like the county clerk can't deny you a license but her ignorance could delay you and make things difficult, you and your wife shouldn't have any more problem with these things than anyone else legally married, but may because of how legal someone you don't know things your marriage "looks." You can carry a copy of your marriage license around with you, but you're better off with more detailed documents that don't hinge on a marriage relationship, like a healthcare power of attorney.

      You may also want to ask an attorney in your area if there's a way to secure "right of sepulchre," which is the ability to claim and bury someone's body. I'm not going to presume to know what your relationship with your family is like, but it's something I suggest to all my transgender clients because I've seen too many people with families who had no problem accepting their identity while they were alive who wanted to mourn and bury someone else entirely when that person was dead.

      1 agrees
      • Thanks for the advice – it will actually be me and my husband 😉 I am not sure if I will change my name at all so I think that when we get married I'll just leave it as it is. That is good advice about getting the marriage license, though – I hadn't thought of that, but it makes sense that since we would look like a gay couple we could very well have a hard time getting ahold of the license even if we legally would be eligible for one. We live in California, though, so hopefully some legislation will change between now and when we get married. 🙂 Thanks so much for your response!

        • Ha! I forgot that the pink haired, femme-y bride icon that shows up next to comments was the default and assumed you were both ladies, not gents. You'll probably have pretty good luck with an understanding court clerk in California with the recent history, but you never know. Couples often leave getting the license to a few days before the ceremony, but going in a week or two before and explaining your situation may save you from having to go back and get your license after you get married (and maybe have to have it solemnized all over again).

          I hope California's laws change, too. I believe that of all other things Americans are or may be, we're fundamentally fair people. Allowing some same-sex couples to be legally considered married in California because they married in a brief window when it was legal but denying new couples from marrying or legal marriages from other states from being recognized is a result so weirdly unfair, so un-American, that I don't think it will be tolerated much longer by the voters.

      • I hope I'm not too late to the game for a little advice!

        I'm a cis-woman dating a trans-man and we're hoping to get married in the future. We live in a state where all you have to do to get a marriage license is both show up at the court house and present a driver's license, and also where same-sex marriage is sadly still illegal.

        My honey has changed his name and gender on his driver's license, but his birth certificate still reflects his old name and gender, which technically makes us a same sex couple in the eyes of the state. He is far enough along in his transition that I suspect we could just go to the court house and get a marriage license no questions asked, but would we be legally married? We have also considered getting married in a state that does have same-sex marriage so we can just be "spouse" and "spouse", but would that actually help when we come home to our non-ssm state?

        Your previous advice about power of attorney is something we plan to do as well. Just wondering if you know anything else we may need to consider. Thanks!

        1 agrees
  10. My fiance has a 4 year old son with a previous girlfriend. They currently have a partial custody arrangement (although they had to fight each other in court a couple times to get there). What kind of legal issues should my fiance and I be concerned about in regards to custody after we are married?

    • Honestly? Prepare for her to take him back to court over their visitation schedule within two years after you get married. If they've been back to court more than once in the past four years, that doesn't sound like a pattern that's going to change. In most of my cases where separated parents have gotten along well, sometimes for years, then had a sudden breakdown of their co-parenting relationship, the one thing that changed was that one of them got married.

      It's unlikely that there's a specific clause in their parenting plan that is changed by either parent marrying, but you need to be as familiar with the parenting plan as your step-son's other two parents because you're responsible for following it, too. If they have difficulty communicating with each other, one of the best tools I've ever found is this service, Our Family Wizard (http://www.ourfamilywizard.com/ofw/) which makes a centralized online calendar and communication system that tracks when parents send messages to each other and when they read them. It's available as a phone app, too. Very easy.

      2 agree
  11. This is so true. My DH's father died a couple years back from cancer. He never made a will and apparently they never went through probate. Now we are finding out that step mom's name isn't actually on the deed to the house just the LOC and now she wants to move and we want the house. It's a headache. This was his fourth marriage but he never saw a lawyer except for divorces and so we were left figuring everything out.

    • Candy, I'm so sorry you FIL left you with such a mess. Too often people think they're saving their family from having to deal with unpleasant things by not planning with them for sickness and death; What they're really doing is putting trouble on layaway.

      A house is the biggest financial asset and obligation most people have, and yet I see so many people in my office who have no idea what the title to their home says. If you're having a hard time imagining a joint checking account or credit card with your spouse, you need to look long and hard (maybe with an attorney) at how you want to own a home.

  12. Thank you for this post Dara!
    and THANK YOU for answering follow up questions. I truly wish you lived in my state so I could use your services and recommend my alternative lifestyle type friends, as well as others, because your advise is practical and straightforward.
    I cannot imagine any other wedding site that could or would cover this kind of information!
    Yay OBB and YAY Dara!

    5 agree
    • No, thank you! Great questions are what make great lawyers, and I've been rich in them on this post. I promise, wherever you live, there are attorneys like me who can help your friends. One of the things I find that's the biggest hurdle to people talking to an attorney about a potential issue is that they've never talked to an attorney about ANYTHING before because they don't know one.

      I love OBB and I was thrilled my guest post was selected. I'd like to write more in the future, since it seems to be an area where people need information along with awesome pictorials of snow cones. Are there any particular legal areas/questions that people would like to see discussed in another post?

      4 agree
      • I'd love to know more about how power of attorney works and setting up advanced directives for health care. I thought that getting married made my husband automatically in charge of both, but I'm getting the sense that's not true. We've discussed what we each want, but formalizing it would be helpful.

        Also, talk to me about a will. I always felt like that was just for people who actually had money to leave. Since we have just enough to get by, and no real assets, would we need one?

        2 agree
        • I will definitely write another post to offer to OBB about all of these issues, but here's the short version:

          Every state is a little different, but all states have some provision for making an advance directive because of a US Supreme Court decision that came out of a case in my state (google "Nancy Cruzan" for the full, sad story) and declared it a fundamental right under the Due Process Clause of the Constitution. This can (but doesn't necessarily have to) include two parts: a living will/health care directive and a health care power of attorney.

          The first document is your personal statement of what health care treatments you would like to have begun or continued and which ones you would like withheld or withdrawn under certain conditions. My state, Missouri, calls this a health care directive and the powers are very broad. My neighboring state, Illinois, calls it a living will and the parameters are more narrow. At its most basic level, it's a sworn statement from you of what you want done when you can't otherwise communicate with your doctors.

          If that first document doesn't address a particular procedure or course of treatment, then your health care provider might go to the person you've named in the second document, the power of attorney. Contrary to popular belief, there's not always a state law that appoints someone to make a decision in the absence of a specific power of attorney. While I know of some states that do or have had a hierarchy of who makes decisions, with a patient's spouse at the top of the list, Missouri is not one of those states.

          Oh, the wills people should have. 50% of all American adults don't have one, a rate that's even larger for Americans of color. Without a will, you're leaving it entirely up to your state's government to tell your family how to pay your debts and divide your property. You know, state government? The same people who are too busy making English the "official language" or banning teachers from saying the word "gay" to fix crumbling bridges? Yeah. Those guys.

          Here's the example I use for people who don't have much in the way of the property we usually think of when we think "estate." Tonight on your way home from work, you're hit by a cross-county bus and killed. Settles for $10 million. The person entitled to collect the compensation for the loss of your life isn't your spouse (though he may have a claim for his OWN loss at not having you anymore), it's your estate, since the compensation belongs to you and you alone. No will? Then you have given the state, which just killed you with a careening bus, control over who may get that money.

          2 agree
  13. THANK YOU!! OBB PLEASE repost this frequently, especially if the lovely Dara is willing to make updates. My mother is a lawyer in the STL Region too and has helped us out with quite a few things since our marraige. We had a wedding to have a big party. We were legally married in Missouri to aid in his ownership of my-our home, the merging of our estates, to help with the process of my parenting his son, living wills, helping with family estate issues on both sides, life insurance, etc etc etc, and we're a vanilla plain man and woman couple. The challenges for partners outside that traditional view are boggling.

    2 agree
  14. The comments about older couples with adult kids needing to do estate planning and will updates are true. My aunt's husband died suddenly, and left no will. Due to state law (in Michigan I think) her husband's estranged daughter (whom he had not spoken to in decades) from a previous marriage got close to a third of the estate that both my aunt and her husband had accumulated together.

    • Too true, Robin. While state law for intestate succession (the legal term for property passing to family when there's no will) is geared to make sure that spouses and close family are taken care of, there's no test for the quality of the family relationship, just the existence of the relationship. It's particularly dangerous for people who aren't legally married in the state where they live, since the state generally won't recognize that person as a spouse.

  15. Yeah, marriages often have tricky circumstances in these scenarios. A lawyer can be helpful – some of these situations might especially benefit from prenup help from a lawyer.

  16. Is it out of line to use this post to recommend estate planning attornies in various local regions? My father is a lawyer in Atlanta who has been doing estate planning and power of attorney packages for gay couples for decades. If anyone in the area is looking for someone with experience there, I would love to make it easier to find him.

  17. I have a perplexing dilemma.

    I'm currently in a monogamous relationship, engaged to my partner. However, I am polyamorous and my partner supports me. Are there any legal issues I should be concerned about prior to the wedding?

  18. #2 is wrong, and I'll explain why, and how you CAN have the family you want in ALL 50 STATES!!!

    Start an LLC. All legal adults become Officers of the LLC. Homes, Cars, insurance for the "employees" all come from the Company which is your family. Family L.L.C.

    By law, business partners have nearly identical rights as marriage partners. Ownership of items in the business is shared. Each person contributes a percentage of their "real work" income to sustaining the business, and thereby has the equity of the company.

    Best of all, lots of things become tax write-offs and Family Vacation becomes a business trip for the Board Meetings.

    1 agrees

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