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Christopher Zischka 2020


A marriage is a civil contract between a man and a woman to become husband and wife.  The validity of a marriage is determined under the laws of the place where the marriage is entered into; if the marriage is valid where the ceremony took place, it will be held valid throughout the United States.

The moment a man and woman marry their relationship creates legal rights and duties.  State law determines the extent of these rights and duties and sets forth conditions concerning the marriage of blood relatives, the minimum ages for marriage and the requirements concerning the physical and mental health of the parties.

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Currently, some states are beginning to recognize same-sex civil relationships (civil unions), however this area of law is developing.

Requirements for Marriage


In most states, in order to enter into a valid marriage relationship, the parties must be 18 years of age.  Most states also allow persons 16 and 17 to marry with the consent of their parents or a judge.

Prohibited Relationships

All states prohibit marriages between uncles and nieces and aunts and nephews.  Many states prohibit marriage between 1st cousins and some between 1st cousins once removed.

Interracial Marriages

The United States Supreme Court is ruled that miscegenation laws, laws that prohibit marriages between different races, are unconstitutional.

Mental Capacity

Generally, in order to enter into a valid marriage, the parties must have the same mental capacity as is necessary to enter into a civil contract.  Marriages entered into while one or both of the parties were intoxicated or under the influence of drugs are generally voidable; any civil action to void the marriage must, however, be brought shortly after the ceremony.


Promise to Marry

In the past, a broken engagement or a breach of a promise (contract) to marry, could give rise to an action for damages. Currently, almost every state has abolished such “heart-balm” lawsuits.

Engagement Rings

In many states, engagement rings are considered ‘conditional gifts’. Subject to statutes that vary from state to state, if the future husband breaks the engagement, his intended may keep the ring; if the future wife breaks the engagement, the ring must be returned.

Premarital (Antenuptial) Agreements

Premarital or “antenuptial” agreements are contracts entered into between a man and a woman prior to a ceremonial marriage.  Premarital agreements spell out the relative rights, duties and obligations between the future husband and wife after the marriage takes place and often will contain provisions that will control in the event of a divorce.

In order to be valid, in most states, there must be financial disclosure of each party’s income and assets.  The agreements must also not be the result of fraud or duress.  While both parties need not be represented by an independent attorney for a premarital agreement to be valid, it is highly recommended that each side retain independent counsel in order to avoid later charges of coercion or duress.  Premarital agreements are not required to provide for spousal support if the marriage should terminate.

Post-Nuptial Agreements

A post-nuptial agreement is one entered into between parties who are already married to effect a   property division or resolve issues in a pending divorce or separation. Post-nuptial agreements entered into in contemplation of divorce are sometimes referred to as marital settlement agreements or separation agreements. Most litigated divorces are settled before final hearing. A marital settlement agreement should set forth the understandings of the parties on all litigated issues, including, at a minimum, the following:

  • Child custody and support
  • Child visitation
  • Responsibility for debts incurred during the marriage
  • Alimony or spousal support
  • Division of property acquired during the marriage
  • Use and occupancy and ultimate disposition of the marital home
  • Determination of who will claim children as exemptions on tax returns
  • Health Insurance
  • Responsibility for attorney’s fees



Since the state must consent to a marriage, in most states one must obtain and pay a fee for a marriage license.  Some states require a blood test and have a waiting period of between 2 and 7 days from the time the marriage license is applied for to the time when it is issued.

Name Change

A woman can either retain her prior name or assume her husband’s last name after marriage.


The person who performs the ceremony must be authorized by law to do so.  Marriage ceremonies may be religious or civil. Generally, ministers, priests, rabbis, judges, a justice of the peace and in some states, notaries public, are authorized to perform wedding ceremonies.

Ceremony Procedure

Other than requiring an indication of willingness to enter into the marriage, no special language or format is required for the marriage ceremony. Most states require witnesses to the marriage ceremony.

Same-Sex Marriages

Currently, some states are beginning to recognize same-sex civil relationships (civil unions), however, this area of law is developing.

Common Law Marriages

In the past, non-ceremonial or common law marriages were recognized.  A common-law marriage comes into existence when a man and women live together, have sexual intercourse, and represent to the world at-large that they are husband and wife.  Today, few states recognize common law marriages, however, common law marriages that came into existence during a time when it was recognized under state law are valid; to terminate such a marriage, a divorce is necessary. Common law marriages are currently recognized in:


Iowa Pennsylvania
Colorado Kansas Rhode Island
District of Columbia Montana South Carolina
Georgia Ohio Texas
Idaho Oklahoma



The law will allow an individual to have only one spouse at a time.  A marriage entered in to while one party was still married to a third party is void;  a subsequent divorce will not validate the marriage.  Bigamy, that is, entering into a marriage relationship with more than one spouse at the same time, is a crime in all states.  While the 1st Amendment to the United States Constitution guarantees freedom of religion, the courts have consistently held that notwithstanding a religious belief that allows marriage to multiple parties, such marriages are not valid.

Relationship of Husband and Wife

Wives and husbands each have the rights to their own property, the rights to enter into contracts and the right to sue independently of their spouse.  In the majority of states, the husband is considered to be the head of the family and has the right to choose the family domicile or residence.  Likewise, the husband generally has a duty to support his wife and maintain his family.

Real Estate

Real Estate owned by a husband and wife jointly is owned as “tenants by the entirety” (tenancy by the entireties).  This means that the parties do not each own half of the property, but rather, each owns the whole property and neither can convey his/her half without the signature of the other.

Community Property States

A minority of states has adopted the ‘community property’ system, which means that any property acquired during the marriage, whether attributed to the efforts of either the husband or the wife, belongs to both the husband and the wife.  The only property that a husband and wife can hold separately in a community property state is property that was owned before the marriage or was acquired by gift or inheritance during the marriage. In some community property states, if one of the spouses dies, the other takes the entire property; in others, the property does not automatically pass to the survivor- rather, it is passed to beneficiaries under a will or intestacy laws. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington are community property states.

Social Security

An individual may be entitled to social security benefits based on the earnings record of a former or deceased spouse (see also Guide to Social Security). In order to receive retirement benefits through a former spouse the marriage must have lasted at least 10 year and the applicant must be 62 years of age, be unmarried and not already be receiving benefits based on the employment record of another. The same criteria apply to survivor benefits (benefits through a deceased former spouse) except that benefits are available from age 60, or as early as age 50 if the applicant has a child under the age of 16.


Spouses are entitled to file joint income tax returns and create family partnerships that allows for income sharing.

Estate Taxes/Marital Deduction

All or a portion of an estate may be transferred to a surviving spouse without any estate taxes whatsoever, irrespective of amount.  This is referred to as the ‘unlimited marital deduction’.  For long-range estate planning purposes, however, it is often not advisable to transfer the entire estate to a surviving spouse, as this will create a large potential tax liability upon the death of the surviving spouse. See also Guide to Estate Planning.

Privileged Communication

Communications between a husband and wife are generally considered to be privileged and confidential and are not subject to involuntary disclosure in a civil or criminal proceeding.

For Florida specific family law topics, please refer to the various legal information topics at our web site.

For a free consultation on all of these issues, contact Hoffman, Larin and Agnetti, PA at (305) 653-5555. Our attorneys have handled more than a thousand family law cases since 1975. We have offices in Dade, Broward and Monroe Counties.