The Pre-Nuptial Agreement and the ‘Confidential’ Marriage
As part of my practice area, I structure and review ‘pre nups’ (pre-nuptial agreements) for clients who are preparing to tie the knot (for the first, second, or third time.) So it was with interest when across my computer screen came an article/posting from a New York divorce and family law attorney named David Centeno. The title of his article grabbed my attention: “10 Common Prenup Pitfalls” (11/04/2013) The article was well written and enumerated the list of the ten common problem areas and also why one should not consider using a prenup “template” for your prenuptial agreement (or write a pre-nuptial agreement on the back of a paper napkin!).
Pre-nuptial agreements are legal documents, enforceable (and sadly sometimes unenforceable) according to very specific points of law. One salient fact to note is that it is always advisable to have separate legal representation for the prenuptial agreement (both people having their own separate attorney to review the agreement.) Thus, the legal rights of both parties are equally represented. Whether to use a pre- nuptial agreement is a matter of personal conscience, but often such well-crafted agreements can avoid future difficulties more often than they create conflict.
Which leads me to the issue of the marriage document itself, again a legal document. Most people entering into marriage do so with the intention of letting EVERYONE know about their new blissful state. However, in the state of California there is something called the ‘confidential marriage’ (in existence since the 1870’s). The original intention was purported to be that for those couples living together in a ‘state of unwededness’ – if there was such a word as unwededness- the confidential marriage allowed the couple to get married without having to announce that they had not been married in the past. Thus, there was a mechanism for the partnership to become ‘legal’ in the eyes of church and law and not have the couple embarrassed in the eyes of their community.
Nowadays, one reasoning to have a confidential marriage is that it is…well…confidential. No one, not even relatives or the paparazzi, would have access to the marriage document – only the two consenting parties. Very useful if you are a famous celebrity. You can access more fascinating details about the rules of a confidential marriage (only in California) via www.losangelesmarriagelicense.com Apparently, Michigan has something comparable which they title the ‘secret marriage’.
The one significant issue about the ‘confidential marriage’ is its potential for misuse, particularly amongst the elderly. There was a point made that an unscrupulous caregiver to an elderly person could use the secrecy of the document for nefarious purpose – marrying their patient/client (in secret) and then claiming an inheritance as the legal spouse. The family of the elderly person would have had no way of knowing that the ‘confidential marriage’ even existed. Again, only California has the “confidential marriage”.
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