5: Introduction to Marriage
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)Although many people cohabit without marrying, most adults in the United States will marry at least once. In addition to being a personal relationship, marriage is a legal status created by the State that forms a union of two persons as spouses. As such, marital status impacts each person’s rights and obligations with respect to many aspects of life including property ownership, financial support, insurance coverage, health care and other benefits, inheritance, income tax liabilities and benefits, government benefits, and rights to pursue certain legal claims (such as wrongful death or loss of consortium), to name a few. This chapter examines the legal status of marriage and issues commonly arising relating to the formation of marriage.
Formation of Marriage
Marriage is a state-created legal status; each State has an interest in regulating the legal status of marriage based on the state’s duty to protect and provide for the general welfare of its citizens. Each State has laws establishing specific requirements and procedures for entering into a marriage that will be legally recognized by that State. However, the power to make laws creating and regulating marriage is not unlimited; it is important to understand the interplay between states’ (and individuals') rights regarding marriage and the United States Constitution.
Marriage and the US Constitution
As previously mentioned, the right to marry is a fundamental right protected by the United States Constitution. Thus, any restrictions imposed on the right to marry – either by states or by contracts or conditions in agreements by individuals – are treated by the law with disfavor.
State laws that restrict marriage are subject to strict scrutiny: the restriction must be narrowly tailored to serve a compelling State interest. In the context of marriage, this means rules and restrictions regarding the formation of marriage cannot exceed the minimum level of restriction, and those restrictions must be absolutely necessary for the State to effectively regulate marital status and the rights and obligations that go along with it. Here are some examples of State laws restricting marriage that have been struck down:
- Banning interracial marriage. Loving v. Virginia, 388 U.S. 1 (1967).
- Prohibiting fathers who are behind in their child support obligations from marrying. Zablocki v. Redhail, 434 U.S. 374 (1978).
- Limiting the rights of prison inmates to marry. Turner v. Safley, 482 U.S. 78 (1987).
- Refusing to allow or recognize same-sex marriage. Obergefell v. Hodges, 576 U.S. 644 (2015).
States can, however, impose other requirements on the right to marry without violating the US Constitution. Thus, each State has basic and procedural regulations that persons desiring to enter into marriage within that State must follow. These regulations relate to the age, intent, and capacity of persons to marry, as well as requirements for the marriage ceremony itself.
As you might expect, the difference between legal requirements for marriage in each of the 50 states may potentially cause issues for people who marry in one state and then move to another state – especially if their new home state has stricter requirements for marriage. The US Constitution has an answer to this problem as well. Article IV Section 1 of the US Constitution is known as the Full Faith and Credit Clause, which states: “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.” In the context of marriage, this means that a marriage that was validly entered into in one State must be recognized and treated as valid in every other State (with a few exceptions, discussed later).
Essential Requirements for Marriage
Although State technical regulations for marriage may differ, there are certain essential requirements that apply to all marriages. Interestingly, these requirements very closely mirror the requirements for valid contracts. They are intent to marry, capacity to marry, and legality.
Intent to marry requires that both parties, at the time of the marriage, actually and specifically intended to enter into a marriage voluntarily, with full knowledge of the rights and obligations that marriage entails.
Capacity to marry requires that both parties possess the legal power to enter into marriage. Mental competence (the ability to understand the nature, rights, and obligations of marriage) is a major component of this requirement. Capacity not only requires that both parties be free of mental health conditions and the influence of alcohol, drugs, or medications that could impact mental competence; it also requires both parties to be a certain age (the actual minimum age varies by State).
Legality in the context of marriage has its foundation in both Federal and State law. The Federal Edmunds Anti-Polygamy Act of 1882 prohibits anyone in the United States and its territories from being married to more than one person. State law requirements for legal marriages usually relate to restrictions based on the parties’ existing family or blood relationships. Which family or blood relationships are “too close” for a valid marriage varies by State.
Procedural/Technical Requirements for Ceremonial Marriage
In addition to the essential requirement for marriage, each State imposes its own procedural or “technical” requirements for entering into a valid marriage in that State (also known as solemnization of marriage). Ceremonial marriages are those entered into under State statutes, though an actual ceremony as we commonly envision it may not be required. Typical statutory requirements include:
- Marriage license issued by the State
- Waiting period between the date the license is obtained/applied for and the date of the wedding (typically between 1 and 5 days, if one is required)
- Authorized officiant to perform the ceremony (members of the clergy, judicial officials, certain ranks of the military, or others specifically authorized by State law)
- Witnesses to the ceremony
- Declaration by the parties of intent to marry, in the presence of the officiant and the witnesses
- Recording of the marriage license in official State records
Access an overview of ceremonial marriage requirements in different states.
Requirements for Common Law Marriage
A common law marriage is an informal marriage where couples do not have a marriage license, marriage ceremony, or marriage certificate. In addition to the essential requirements for marriage described above, all that is required for common law marriage is that the couple actually cohabitate (live together) as spouses and publicly hold themselves out as spouses. In other words, the couple needs to behave the way our culture expects married persons to behave: for example, by introducing themselves as spouses and sharing income, property, debts, and liabilities. While there is no specific period of time required, the longer the couple behaves in this way, the more likely it is that they will be considered to have entered into a common law marriage. If the status of common law marriage is challenged, in most states the couple must prove they meet these requirements by clear and convincing evidence. This is the middle burden of proof between preponderance of the evidence (which is slightly more likely than not) and beyond a reasonable doubt (the highest burden of proof, used in criminal cases).
As of 2024, only a handful of States still allow persons to enter into common law marriages (Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, Texas, and the District of Columbia). Other States recognize common law marriages that couples entered into within their borders prior to a specific date (Alabama, Florida, Georgia, Idaho, Indiana, New Hampshire, Ohio, Pennsylvania, and South Carolina). Most States, however, prohibit persons from entering common law marriages within the State (however, pursuant to the Full Faith and Credit Clause, these States must recognize common law marriages legally entered into in other states, with some exceptions).
I Thought I was Married, But ...
Sometimes people honestly believe they are legally married and have behaved as a married couple for a period of time, but they actually are not. This person is known as a putative spouse.
Putative spouse: A person who believes in good faith that they have entered into a valid marriage when the marriage is actually unlawful due to a legal impediment.
Legal impediment: A requirement that has not been met or some other legal obstacle that makes the marriage unlawful.
The law provides a few ways to rectify this problem, depending on the reason the marriage is invalid.
In Wisconsin, “immaterial irregularities” with respect to the authority of the officiant will not render a marriage void if all of the other requirements for a lawful marriage have been met. Section 765.21, Wis. Stats. Similarly, “immaterial irregularities” with respect to the marriage license will not render a marriage void if all of the other requirements for a lawful marriage have been met. Section 765.22, Wis. Stats.
One of the most common impediments to a lawful marriage is that, at the time they entered into the current marriage, one party believed in good faith (incorrectly) that their prior marriage was legally terminated by annulment, divorce, or death of the other spouse. The subsequent marriage will be considered lawful once the impediment is removed as long as the parties continue to live together as spouses. Section 765.24, Wis. Stats. This is known as putative marriage.
But what if one of the putative spouses now wants to use the impediment against the other spouse? For example, suppose that Spouse A was previously married, and obtained an invalid divorce from Spouse A’s first spouse prior to marrying Spouse B. Years later, Spouse B files for divorce from Spouse A and requests property division and spousal support. Spouse A now claims the marriage to Spouse B was void because Spouse A was still legally married to Spouse A’s first spouse. Because it is Spouse A’s “fault” that the first divorce was invalid, Spouse A will not be allowed to now use that invalid divorce against Spouse B. Marriage by estoppel prevents the “guilty party” from taking advantage of circumstances that the party wrongfully created in the first place.
Marriage by estoppel: An equitable doctrine of law that treats parties as married because fairness prevents the party with "dirty hands" from asserting the marriage is invalid (even though it actually is invalid).
"Clean hands doctrine”: An equitable doctrine that is intended to prohibit someone from obtaining judicial relief when that person is also guilty of behaving in bad faith, unethically, or illegally.
Dirty hands: Wrongdoing or other inappropriate behavior that would make it unfair or inequitable to allow a person to assert a right or defense otherwise available to that person.
When the claimed valid marriage is a common law marriage, it’s a bit trickier. In states that recognize common law marriage, a few states will recognize as a valid marriage a relationship in which a couple lived together in a marriage-like relationship but did not otherwise meet the requirements of a common law marriage – even if the parties did not believe that they had met those requirements – as a de facto marriage (marriage in fact). Typically, it will only be for limited purposes, such as allowing a cohabitating survivor to receive death benefits even though there was no putative marriage. Most states, however, do not recognize de facto marriages.
De facto marriage: An equitable doctrine of law that allows a court to recognize as a valid marriage a relationship in which a couple lived together in a marriage-like relationship but did not otherwise meet the requirements of a common law marriage – even if the parties did not believe that they had met those requirements.
Full Faith and Credit and Conflicts of Laws
The validity of a marriage is determined by the laws of the state in which the marriage was entered into, also known as the State of Celebration. Although the Full Faith and Credit Clause requires states to recognize marriages legally entered into in other states, there are some limited exceptions to this requirement. The most important limitation applies when a couple gets married in another State for the sole purpose of avoiding their home State’s marriage requirements. The Conflict-of-Law rule allows a State to refuse to recognize the validity of a marriage performed by another State when recognizing that marriage would violate a strong public policy of the State being asked to recognize the out-of-state marriage.
When confronted with a conflict of laws question, the first question that must be answered is in which State the couple was domiciled at the time of the marriage.
Domicile: The place where a person intends to make their legal, permanent home. A person can have only one domicile.
Residence: A place where a person is living at any given time.
A person can have many residences, but only one domicile. A person’s intended domiciliary state is demonstrated by:
- Voter registration (a person can be registered to vote in only one State)
- Driver’s license and motor vehicle registration
- Income tax filings (address on the forms, State to which the person pays State income tax)
- Address listed on the person’s estate planning documents (wills, trusts, powers of attorney, etc.)
- Objective evidence of the person’s intent to make the State the person’s permanent home
- To a lesser extent: billing address for credit cards and other bills, location of the party’s employment, where the person does their banking, goes to church or school, where the person owns or rents real property
The key to determining domicile is weighing indicators of permanence vs. temporariness. Vacations, visits, and “seasonal” dwellings are residences. Living in a state for the purpose of attending school or for limited-term employment does not make that state the person’s domicile, even if the person has lived there for several years. If the person intends to return to another state after finishing school or when the employment terminates, the State to which the person intends to return is that person’s domicile.
If a couple is married outside of their domiciliary State, the next question that must be answered is whether the parties’ sole reason for marrying out of state was to avoid a marriage requirement imposed by their home State based on that State’s strong public policy. For example, some states do not allow a person under the age of 18 to marry in any circumstances. Other states allow persons under the age of 18 to marry, but only with parental consent and/or other restrictions (usually based on age difference between the spouses). One of the “strong public policies” behind the prohibition of marrying under the age of 18 is the desire to protect minors from exploitation. Suppose a 16-year-old person is domiciled in State A, which prohibits that person from marrying. The 16-year-old person, the 16-year-old person’s parents, and the spouse-to-be all drive to State B, which allows 16-year-olds to marry when there is parental consent. The 16-year-old and the spouse-to-be enter into a ceremonial marriage, fully intending to return to State A afterward. State A would be allowed to refuse to recognize the marriage performed in State B because State B was not the couple’s domicile and the only reason the couple married in State B was to avoid State A’s marriage requirements.
Individuals' Attempts to Restrict Marriage of Other Individuals
Sometimes it isn’t the State that is attempting to restrict someone’s right to marry; parents or other persons sometimes attempt to use conditional gifts or contracts to do so. While the intent behind such conditions may be benevolent, the law still treats these attempts to limit marriage with disfavor.
General restraint of marriage, defined as a total or near total prohibition of marriage, is unenforceable because it prohibits the exercise of the fundamental right to marry. Examples of unenforceable restraints on marriage include:
- A person agrees never to marry, in exchange for a large sum of money to be given to that person by someone else
- Money will be paid out of a trust to a person as long as the person remains unmarried. If the person marries, the person must repay any money that was previously paid
Reasonable limitations of marriage, defined as limits that are partial, useful, and not otherwise illegal, may be enforceable. Even if the partial limits are fairly broad, as long as they don’t totally prohibit marriage, they are considered partial. A limit is “useful” if it is intended to provide a benefit to someone, to protect someone, or to preserve a valuable tradition or culture. Finally, a limit is legal as long as its impact and/or purpose does not violate any other laws. Examples of reasonable limitations that might be enforced include:
- A person promises not to marry someone who is of a different religious faith
- Money will be paid out of a trust to a person as long as the person remains unmarried until the person earns a college degree
- A person agrees not to marry between the ages of 18 and 21 without the consent of the person’s parents.
- A person agrees not to marry someone with a criminal conviction
- A person’s parent agrees to pay the entire cost for the person’s medical education if the person marries a doctor or a medical student
- A workplace policy does not allow employees to be married to one another; if two employees marry, one or both of them must be terminated. (This is a type of anti-nepotism policy)
Marriage in Wisconsin
Wisconsin’s statutes governing the formation of marriage are contained in Chapter 765 of the Wisconsin Statutes. Wisconsin permits otherwise competent persons who are 18 years of age and older to marry; if a person is between 16 and 18 years old, written consent from the person’s parents, guardian, or custodian is required. Wisconsin further regulates marriage as follows:
- Restrictions on marital, family, and blood relationships of persons wanting to marry. Section 765.03, Wis. Stats. (persons more closely related than 2nd cousins cannot marry)
- Marriage license requirements. Section 765.08, Wis. Stats., (3-day waiting period), and Section 765.12(2), Wis. Stats. (60-day expiration date)
- Authorized officiants. Section 765.16, Wis. Stats. (only certain types of persons may perform marriage ceremonies)
- 3-day deadline for filing of the marriage license, marriage certificate, and other required information with the Register of Deeds. Section 765.19, Wis. Stats.
Wisconsin's Marital Property Law
Wisconsin’s Marital Property Law (Chapter 766 of the Wisconsin Statutes) recognizes that both spouses contribute to supporting a marriage – regardless of their actual incomes earned. The law says that, with limited exceptions, whatever the couple acquires during their marriage should belong to both of them equally.
Marital property: All income and property that comes into a marriage while the couple lives in Wisconsin.
Unless otherwise stated in the statutes, each person “owns” 50% of all income and possessions earned or acquired during the marriage (marital property). Even if only one spouse’s name is on the title or other document showing ownership, if it was acquired during the marriage or purchased with marital funds, it is presumed to be marital property (although the spouse whose name is on the title has the right to manage and control the property).
Individual property: Personal gifts or inheritance to one spouse, and property owned prior to the marriage.
Individual property includes personal gifts or inheritance to one spouse, and property owned prior to the marriage. If the property meets these requirements, it belongs solely to one spouse and the other spouse has no right to own, manage, or control that property. Great care must be taken to keep individual property separate from marital property during the marriage. If individual property is mixed or combined (commingled) with marital property, it becomes marital property (with some exceptions based on proof of sources of individual property).
Credit and Debts
In Wisconsin, when making decisions about whether and under what terms to issue loans or credit, creditors (such as banks, loan institutions and credit cards) must consider the value of all marital property, even if only one spouse earns income. The downside of this, of course, is that debts and obligations incurred during a marriage are presumed to be marital debts. As a result, if one spouse owes credit card debt, the creditor can go after not just that spouse’s individual property, but also all marital property – including the other spouse’s income.
Testamentary Impact
A married person’s estate at death includes all of that person’s individual property, plus half of all marital property. One spouse can’t completely give away in a will any item of property that is classified as marital property, even if only that spouse’s name is on the title to the property. An attempt to do so may result in co-ownership between the person receiving the gift and the surviving spouse.
If a married person dies without a will, the surviving spouse will receive all of the deceased spouse’s individual and marital property, unless the deceased spouse has children from outside the marriage to the surviving spouse. If the deceased spouse has children who were not born during the marriage to the current surviving spouse, those children will receive half of the deceased spouse’s marital property and half of the deceased spouse’s individual property; the surviving spouse receives the rest.
“Opting out” of Wisconsin’s Marital Property Law
Spouses can also enter into a marital property agreement to avoid the application of Wisconsin’s marital property law. The agreement can be included as part of a marital contract as described above, or the parties can use the Wisconsin Statutory Individual Property classification agreement.
Promises to Marry and the Law
As you know, promises to marry can be sufficient consideration to support a prenuptial agreement. Unfortunately, promises to marry are like pie crusts – easily made, easily broken. The consequences of those broken promises, however, are not easily borne and can be financially and emotionally significant. What is the remedy when an engagement is broken?
Breach of Promise to Marry
When parties agree to marry one another, costly circumstances typically arise. One or both parties may receive an engagement ring or other gifts from the other party in contemplation of the upcoming marriage, as a symbol of their commitment to the promise to marry. Significant non-refundable expenses may be incurred relating to the wedding celebration itself (wedding gown, reservation of the reception venue, caterers, wedding cake designers, floral and other decorations, wedding invitations, etc.) by the parties or by third parties. Third parties might incur travel and lodging costs to attend the wedding celebration and may purchase gifts for the soon-to-be spouses. State laws vary in terms of whether and to what extent these losses can be recovered.
Heart balm actions, where the jilted person sues the other person to recover damages based on a broken heart due to a breach of promise to marry, are allowed by only a few states. States that allow heart balm actions typically allow the jilted party to recover compensatory damages – the costs incurred by that party in anticipation of the wedding celebration. Some states also allow damages for humiliation and mental anguish. In very rare cases, punitive damages can be awarded if the breaching party acted with the intent to humiliate or harm the jilted party out of animosity, ill will, or malice. However, no states allow the aggrieved party to be compensated for the “loss of lifestyle” the person would have enjoyed if the marriage had occurred.
Many states have enacted statutes that prohibit heart balm actions between parties who promised to marry each other. Wisconsin is one of those states (see Section 768.01, Wis. Stats.). The legislature believed that heart balm actions do “not encourage stable marriages, and … sanction conduct that borders on extortion.” General Report, Wisconsin Legislative Council, 1959, Bill No. 151A, at 70.
Return of gifts
Claims for the return of gifts are separate from heart balm actions. There are several factors impacting whether someone can successfully force the return of gifts or money given to one or both would-be spouses.
Irrevocable: Gifts that are not capable of being altered, canceled, rescinded, or recalled.
Revocable: Gifts that are able to be altered, canceled, rescinded, or recalled.
Whether a gift is irrevocable or revocable depends on the circumstances surrounding the giving of the gift.
For a gift to be irrevocable, there must be a voluntary delivery of something from one person to another. The giver (also known as a donor) must intend, at the time the item is delivered to the other person, to immediately transfer title, ownership, and control of the item to the recipient (also known as a donee). There must be no payment or other consideration provided by the recipient to the giver in exchange for the item, and the recipient must accept the gift. A statement of intent to give a gift in the future, or only if certain circumstances occur, is not an irrevocable gift. Loaning something to someone with the expectation that it will be returned also is not an irrevocable gift.
Revocable gifts are also sometimes called conditional gifts. The gift is not complete unless or until something occurs (or does not occur) in the future. There were some examples of conditional gifts provided in the discussion of partial restraints on marriage earlier in this chapter.
Most states (including Wisconsin) agree that gifts given to a person in contemplation of marriage are conditional gifts that must be returned if the marriage does not occur, regardless of the reason it does not occur (or who is “at fault”). Engagement rings and other engagement gifts exchanged between the parties promising to marry are classic examples of conditional gifts. The deciding factor is the intent of the party giving the gift to a would-be spouse, as evidenced by that party’s words and actions at the time the gift was given. If there are circumstances demonstrating reasons other than contemplation of marriage for the giving of the gift (for example, a person gives their soon-to-be spouse a birthday gift), a court could determine the gift is irrevocable.
In most states, it is even easier for third parties (families and friends of the betrothed) to force the return of their gifts as being conditioned on the future occurrence of the marriage. With respect to payments of money, many of these states also allow compensation pursuant to a claim for unjust enrichment.
Paralegal Roles
In Wisconsin, legal practitioners typically aren’t involved in assisting people with entering into the actual marriage itself. Questions regarding marriage validity typically come up in the context of annulment or divorce, which are covered in later chapters.