The Need For Consultation With An Attorney Before Marriage

Leonard Mark,  |  March 16, 2017

Often people inquire into whether it is necessary to consult with an attorney before marriage.The answer is it is not necessary, but it is appropriate.

Aside from the emotional components of a marital relationship, there are financial consequences to any marriage that each party to the marriage should be aware of prior to the marriage.As a consequence, each of the parties should consult with an attorney of their choosing independent of the other before making a decision to marry.

After the parties marry, there exist three legal entities.The separate estate of the husband; the separate estate of the wife; and the community estate of the husband and the wife.

A.R.S. S 25-211 sets forth what will be considered the community property of the parties.Essentially, it provides that all property acquired by either the husband or the wife during the marriage is community property except property acquired by gift, devise, or descent.

A.R.S. S 25-213 sets forth what will be considered the separate property of the parties.Essentially, it provides that a spouse’s real and personal property that is owned by the spouse before marriage is that spouse’s separate property and any property acquired by that spouse during marriage by gift, devise, or descent, and the increase, rent issues, and profits of that property, is the separate property of that spouse.Also, property acquired by a spouse after service of a petition for dissolution of marriage is the separate property of that spouse.

All of the above-mentioned becomes very important because in the event of a dissolution of marriage, the court, under A.R.S. S 25-318, must confirm to each party their sole-and-separate property and equitably divide their community, joint, and common property.

Therefore, before entering into a marriage, each of the parties should understand what is going to be considered separate property and what is going to be considered community property.They should also be informed as to how they can avoid problems concerning those issues that could result in them losing an interest in what otherwise would have been separate property.

During the interview with the attorney prior to marriage, the use of a prenuptial agreement can be explored.A.R.S. S 25-203 provides that the parties, prior to marriage, can enter into a written agreement that addresses the rights and obligations of each of the parties and the right to manage and control property.That section also provides the opportunity of the parties to modify or eliminate spousal maintenance.

In summary, because marital law can be somewhat confusing and complicated, and because often substantial amounts of money and property are involved, it is prudent on the part of each of the parties to consult with an attorney prior to their marriage.

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