It isn't exactly romantic, but discussing legal issues before you tie the knot is necessary. "In certain circumstances, the unanswered legal issues could unravel a marriage," warns Laurie Ruckel, trusts and estates lawyer at Loeb & Loeb in New York City. So, here, Ruckel provides the legal questions you must discuss before you say "I do."
Do we need a prenuptial agreement?
A prenuptial agreement—meant to specify what each person's property rights will be after the marriage—is not appropriate for every couple, Ruckel says. But couples in two specific scenarios should absolutely consider obtaining one: those in which one partner owns a closely held business or family enterprise, and those who anticipate one partner will eventually quit working, perhaps to become a stay-at-home mother. "If you own a closely held family business, you may want to ensure that interest in that business is protected in the event of death or divorce," Ruckel explains, while couples with plans to include one stay-at-home parent may want to add provisions to "predetermine his or her rights going forward with respect to alimony or maintenance in the event of a divorce."
How will we maintain our residence?
If you're buying a house or moving into a new apartment together, that's one thing. But Ruckel says that if one partner plans to move into the other's residence when they get married, "you may want to address how that residence will be maintained and improved during the marriage." For example, will the funds to keep up and improve your home come from the marital pot, or should the person who owns the residence be required to maintain and improve it from his or her separate property? Plus, Ruckel says, don't forget to talk over what you'd do if you moved. "If the residence is sold during the marriage, does the owner of the residence receive all of the proceeds, or will it be an even split?" she asks. Having such a discussion could prevent residential and financial resentment from brewing down the road.
What are our state's laws regarding assets?
There's no universal law that applies to how your assets will be distributed in the event of your death. Rather, each state determines how assets will be handled should you pass away. And how your state handles your assets "may or may not be consistent with how a couple would want their assets to pass," Ruckel points out. So before you tie the knot, it's important to learn how your state would distribute your assets after death—and if you don't agree with its methodology, it might be time to set up a will. "A will or a trust will supersede what the law says with respect to how the person's assets will pass at death," Ruckel says.
How will we raise—and pay for—our respective children?
Especially in a second marriage, the chances are high that one or both of you will bring children into your new union. If you find yourself in this scenario, you should know that without a legal agreement that says otherwise, most states consider the earned income of couples during marriage shared marital property—regardless of whether a good hunk of yours is paying for your daughter's private-school tuition. "You should discuss the obligations you each have toward your respective children and articulate how and from where you intend to pay these ongoing expenses," Ruckel says. "Oftentimes one party is moving his or her child to a new school upon the marriage. If there is extra cost to that, the parties may want to discuss how that additional cost will be paid."