Marriage brings both financial and legal benefits as well as duties. In some cases, these marital rights and responsibilities will continue even after your marriage ends—through death or divorce.
Your Marital Rights
Marital rights can vary from state to state, however, most states recognize the following spousal rights:
- ability to open joint bank accounts
- ability to file joint federal and state tax returns
- right to receive “marriage” or “family rate” on health, car and/or liability insurance
- right to inherit spouse’s property upon death
- right to sue for spouse’s wrongful death or loss of consortium, and
- right to receive spouse’s Social Security, pension, worker’s compensation, or disability benefits.
In addition, marriage entitles you to a share of all marital property. This includes the right to any property and income accrued by your spouse during the marriage. The particular laws of your state will affect how marital property is divided between you and your spouse in the event of divorce. For example, in community property states like California, both spouses enjoy equal rights (50/50) to property acquired during the marriage. The majority of states follow an equitable division approach, meaning marital property will be divided equitably or fairly between divorcing spouses—though not necessarily equally.
Your Marital Responsibilities
When you get married, you're promising to treat your spouse with respect. In many states, if one spouse engages in certain marital misconduct, such as abandonment, abuse, or adultery, that behavior can provide the grounds for a fault-based divorce and may even affect alimony and property division.
Additionally, spouses owe a fiduciary duty to one another. What this means is that your prospective spouse can’t lie to you about finances, a criminal past, or their current marriage to another spouse to induce you into marrying them. A marriage based on one spouse’s fraud can be annulled under certain circumstances.
Once married, you continue to owe your spouse a fiduciary duty regarding finances and property—similar to the duties owed between business partners. You can't hide funds, waste marital assets or send marital income offshore or to another person—like a lover—without your spouse's consent. If you breach your fiduciary duties to your spouse, and your financial misconduct is discovered during a divorce, most courts will order you to reimburse your spouse for the funds you lost or wasted.
Spouses also owe each other the duty to keep confidential communications private. The marital communication privilege or “spousal privilege” prevents either spouse from disclosing confidential marital communications. Either spouse can invoke the privilege to prevent the other from testifying about a confidential marital communication. A spouse can testify about the other spouse’s actions like seeing the spouse selling drugs. However, one spouse can’t testify about confidential communications during the marriage, such as one spouse’s disclosure that he’d sold drugs to a friend.
Will a Prenuptial or Postnuptial Agreement Affect My Rights or Responsibilities?
Prenuptial or postnuptial contracts can affect one or both spouses’ rights and obligations during and after a marriage. Most often, a prenup or postnup will change your financial responsibilities or rights to assets upon divorce. For example, an agreement can require your spouse to take full responsibility for all debts, keep your property separate, and may limit either spouse’s right to collect alimony in the event of divorce. One financial area that prenuptial and postnuptial agreements can’t cover is child support. Parents can’t pre-negotiate the terms of child custody or child support in a premarital agreement or postnup.
Each state has its own laws regarding prenuptial and postnuptial agreements. Be sure to review the laws of your state before entering into a contract with your prospective or current spouse. If you have specific questions about your marital rights or responsibilities, contact a local family law attorney for advice.
Questions for Your Attorney
- My spouse told me that she was very rich when we married, but I’ve since discovered she has several hundred thousand in debt. What can I do?
- My spouse and I signed a prenup, but now that we’re getting divorced, I don’t like the terms I agreed to. Do I have any recourse?
- I’m being charged with a minor crime and don’t want my spouse to testify against me. Can I prevent her from being called as a witness?