Marriage 101

By Adrienne Griffis

I have always thought that the government should offer an informational seminar on the legal effect of marriage before doling out marriage licenses like playing cards at a poker table. It only takes about $60 and half an hour to get married in Arkansas; however, ending that marriage can take months to years and cost thousands of dollars. I have had many clients tell me, “I wouldn’t have even gotten married had I known [insert provision of marital property law which is obvious to attorneys but apparently shocking to some laypeople].” Regrets aside, there are several common misconceptions about ownership of property that are better addressed prior to saying “I do.” Welcome to Marriage 101.

Lesson #1: Titling a piece of property in your sole name does not make it your sole property. Your spouse has a marital interest in any property you acquire during your marriage, and all of this property is subject to an equal division by the court upon divorce. This includes all types of property—your vehicle, your bank account, even your retirement benefits. (Of course, there are a few exceptions to this, but we’ll leave that for the advanced course!) Just know that the money you think you are safeguarding in that secret bank account is not going to be protected from distribution to your spouse in a divorce. Similarly, your car is not “your” car just because it’s in your name—the court can award the vehicle to either of you irrespective of the status of its title.

Lesson #2: Conversely, titling a piece of property in the names of both spouses does make it jointly owned property. I know what you are thinking: Wait, you just told me that putting something in my own name doesn’t make it mine—why isn’t the same true for jointly owned property? Stay with me and you’ll find out. Let’s say you inherit some money from a family member. You then use that inherited money to make a down payment on a house for you and your spouse to live in. The deed to the house is placed in joint names. Even though that inheritance would have otherwise been your non-marital property (more on that in Lesson #3), your spouse now has an interest in the entire value of the house, including the value attributable to your down payment. The law presumes that you intended to give your spouse an interest in your non-marital property by placing the property in his or her name. Keeping your non-marital property in your name only will prevent you from making an unintentional fifty percent gift to your spouse.

Lesson #3: There are certain types of property that your spouse cannot get his or her hands on in a divorce, provided you keep that property separate from the marital property and in your sole name. These categories include property you owned before the marriage, gifts to you (including from your spouse), inheritance or other property acquired as a result of someone’s death, and certain benefits from disability or personal injury claims. You can keep the non-marital character of this property alive throughout the marriage if you are careful not to combine your non‑marital property with marital property. Otherwise, a situation similar to the one described in Lesson #2 will occur.

Lesson #4: Pets are property, not people. I know, it’s harsh, but your dog is the legal equivalent of your TV. That means your furry friend is subject to the same marital property rules discussed in the previous lessons. We’ve all heard about pet “custody” battles, like this one, but unless you and your spouse agree to split time with your pet, one of you is likely going to end up the sole owner after the divorce. If you want that person to be you, you should consider using non‑marital funds to purchase your pet or request the pet as a gift for a special occasion.

Lesson #5: There is no “common law marriage” in Arkansas. It doesn’t matter how long you live with someone—if you do not marry that person, you have no interest in his or her property. For example, if an unmarried couple—we’ll call them Jane and John—buy a house together but only John’s name is on the deed, John is the only person who owns that property. Even if Jane pays every single mortgage payment, she will still have no legal interest in that house. However, if Jane and John were to later get married, Jane would have a claim for reimbursement from John in the amount of the reduction in principal on the house during their marriage. Accordingly, if you plan on cohabiting with someone in lieu of marriage, you need to ensure that your name is on the property you want to share with your significant other, and his or her name is not on the property you don’t.

This concludes today’s lessons. I hope you are now a little more enlightened regarding the effects of marriage on your property. The best way to protect yourself is to consult with an attorney before you tie the knot to see what you can do to minimize your exposure if the marriage doesn’t work out, such as executing a premarital agreement. A divorce may result in a broken heart, but it doesn’t have to break the bank, too.


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