Legal Update: What to Consider Before You Get Married: Advice You Never Knew You Needed From a Divorce Attorney

April 2021

By Gina Cortese

Alongside questions about prenuptial agreements, one of the most frequent questions I receive from people upon their learning that I am a divorce lawyer is, “So, you see all of these relationships falling apart, what is it that goes wrong in a marriage?  What do you think leads to divorce?”  Each time, I give the question—and my answer—more  thought.  What is it exactly that I see happening?  So, here it is: a divorce attorney’s advice to anyone contemplating marriage.

Have hard conversations with your partner. Many magical things may happen on your wedding day, but none of those magical things will be to make the day after marriage easier for hard conversations than the day before you were married.  If you can’t have the hard conversations before marriage, whatever the reason for that may be, you will go into the marriage with the same issues (and may find yourself surprised by what you learn for the first time about your spouse), only now, you, and your finances, are invested.  Examples of  hard conversations include:

  • Do you both want kids? How many? Who will take care of them? Will one of you stop working? Do you feel that a caretaker is making a valuable contribution to the home? Could you quantify that contribution?
  • How do you feel about money? How do you feel about spending versus saving?
  • What are your values, especially in the realms of religion, politics, partnership, and culture?
  • Ideally, what do you want the rest of your life to look like? Do you want to stay living where you are?  Would you buy a home together?  What are your preferences about lifestyle?
  • What are your goals? Does one of you want to start a business? Would you be partners in the business? How would the non-business spouse support the business spouse?
  • How do you feel about what each other’s role in the marriage and around the home should be? Who is responsible for what?  How do you view partnership?  What information is shared and what isn’t?
  • How do you each handle conflict?

Regardless of whether you or your partner desire a premarital agreement, you should each consult with a California family law attorney to understand what happens to your finances upon marriage and a potential divorce. Then, have the conversation with one another about what the law dictates, how you feel about the law, how you feel about money, and how to value your respective contributions to the household and your family unit, including noneconomic contributions. Frequently, I find couples are surprised to learn basic California community property laws. For example, they may not realize that just because one spouse deposits their paycheck into a separate account held solely in that spouse’s name, that doesn’t render that money that spouse’s separate property at divorce—the earnings acquired during marriage are still split 50/50 unless the partners have a premarital agreement or postnuptial agreement providing otherwise.

Most often, one spouse takes control of the finances during marriage. While this can be a control issue, often it’s simply because one spouse feels more comfortable with finances than the other.  Unfortunately, if the marriage ends in divorce, the spouse who did not maintain control of the finances could be significantly disadvantaged in the divorce process by having to obtain and understand the finances for the first time, and feeling uncertain as to whether to trust that their partner has fully disclosed everything. Ideally, during the marriage, both partners would have equal access to, and a complete understanding of, the assets and liabilities, when and how bills are paid, and an understanding of their monthly expenses. Transparency and shared access to information might also foster open communication and head-off conflict or distrust around financial security during the marriage.

If the marriage ends in divorce, and one or both of you stopped working during the marriage, depending on your age and circumstances, the law may expect that you return to the workforce, even if your skillset is outdated.

Get more curious about what your partner’s values are than their interests. It’s far simpler to compromise on how to deal with different interests than it is to compromise on how to deal with different values.  When you realize you and your partner are misaligned on a value, or you feel concern that your partner cannot meet your core needs, trust yourself.  Have the hard conversation with yourself and then with your partner.  Pretending you don’t see the misalignment doesn’t make the misalignment go away.

If your partner exhibits any signs of intimate partner abuse (verbal abuse, threatening you, harassing, stalking, controlling behavior, controlling your money, isolating you from family or friends, physical violence, damaging property, etc.), their behavior will very likely only become worse if you proceed with marriage. Please immediately contact a trusted friend or family member, a psychologist, and a domestic violence hotline such as the National Domestic Violence Hotline at 1.800.799.SAFE (7233) or a local shelter’s hotline (in the Bay Area, CORA and La Casa de Las Madres).