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Authored by Boyce Hinman, founder and director of the California Communities United Institute, and member of Marriage Equality USA. Hinman has been writing and posting a series, "Monday Morning Marriage Memo," as part of his Anatomy for Justice blog. This article was first published there, and is republished here with the author’s permission. Hinman resides in and serves California, therefore the posts sometimes have a California slant.
NOTE: Marriage Equality USA is not a legal firm or a tax/accounting firm. No action should be taken based solely on the content of our news blog or website.
It’s wonderful that same sex couples can now marry in California. But couples shouldn’t rush into marriage without considering the pluses and minuses. The purpose of this Monday Morning Marriage Memo is to advise you of some of the possible minuses that result from community property law in California.
For one thing, if the marriage does not work out, couples would have to go to divorce court to end the marriage. That can be a long, painful, expensive process. And, in such cases, the divorce court could require the spouse with the greater income to pay a substantial amount in alimony each month to the spouse with the lower income. These monthly payments would not be due if the couple had not married in the first place.
Many financial advisors suggest you settle who gets what in case of a divorce by signing a pre-nuptial agreement prior to marrying
These facts about divorce court and possible alimony payments already apply to registered domestic partners in California.
I am not an attorney or a qualified tax expert. No action should be taken based solely on the content of this memo. However, I hope this memo will help you ask the right questions of people who are qualified in these issues.
Another issue to consider is the fact that California is a “Community Property” state. That fact has significant consequences for those California residents who marry.
For example, under community property law, all the earnings of both spouses during the marriage are considered community property. Each spouse in the marriage has the right to spend all of that income if he or she chooses to do so.
And the debts of either spouse can be charged against community property by debtors. Conceivably, if you marry, your spouse could rack up debts that would wipe you out financially.
However some property is not considered community property and would be protected in the above situation. The following types of property remain the separate party of one spouse or the other:
- Any property owned separately prior to the marriage,
- Any property inherited or received as a gift during the marriage by either party
- The proceeds from the rent or sale of separate property
- Items and money earned while legally or physically separated from the spouse
- Any items conveyed from one spouse to the other with the intention of designating it as separate property
As noted, a house owned by one spouse prior to the marriage remains his or her separate property. If the marriage sours the spouse who owns the home could evict the one who doesn’t.
That would leave the evicted spouse without a place to live, and perhaps without enough income to pay for housing.