A will, pre-nup, or a finance lawyer? Legal benefits of marriage? Can a will substitute? Do pre-nups only kick in for divorce?

Asked about 1 year ago - New York, NY

My domestic partner and I are engaged, and I am pregnant. We are not same sex. He has a tremendous amount of student loan debt, and we have kept our finances separate and would like to continue to do so. He is an artist/writer, and I have a regular income and have a higher salary than him right now. He is on my health insurance.

Regarding his debt: How can we ensure that his debts don't become my responsibility once we are married? Are we viewed as one financial unit by his creditors? What if he files for bankruptcy? How do all these factors affect my own rating?

Depending on above we have considered NOT getting married.

However, RE children: what are the legal benefits of getting married?
What Other legal benefits of getting married that we'd miss? Can a living will substitute?

Attorney answers (3)

  1. Jeffrey Bruce Gold

    Pro

    Contributor Level 19

    1

    Lawyer agrees

    Answered . You have an income and a lot of questions all of which are important to your future and that of your child. I strongly recommend that you make an appointment with a matrimonial attorney to obtain answers. Keep in mind bankruptcy almost never eliminates student loan debt so that is coming in to the marriage with you. You do not become responsible for his debt and his failure to pay it will not effect your credit rating. However, if you have joint accounts or purchase property together, his debt load and his failure to service his debt could effect you - married or not.

    If you'd like to discuss, please feel free to call. Jeff Gold Gold, Benes, LLP 1854 Bellmore Ave Bellmore,... more
  2. Charles Matthew Newman

    Contributor Level 1

    Answered . You have asked a number of important questions, sometimes in ways that the law answers with different language. The most important thing is that you live your lives as you want to. If you *want* to get married, a lawyer can show the way to deal with the financial questions so you *can* get married.

    One can't fully answer all your questions in this format. There are many details and nuances. Briefly, you are right to want to know those answers and you should contact one of the lawyers who responds to your inquiry or talk to a lawyer you already know.

  3. Seth David Schraier

    Pro

    Contributor Level 8

    Answered . Because your partner's debt was accrued prior to the marriage, it would be seen as his separate debt. However, if he defaults on the student loan, then creditors can go after any marital assets or property such as joint bank accounts or if you file your taxes jointly. So the important thing to ensure before going into the marriage is that you are both protected from this liability down the road. For example, when I draft prenuptial agreements, I include the following language:

    "Neither party shall assume or become responsible for the payment of any pre existing debts or obligations of the other party because of the marriage. Further, neither party shall incur any debts or obligations during the marriage for which the other could be held responsible without the express written consent of the other. Neither party shall do anything that would cause the debt or obligation of one of them to be a claim, demand, lien or encumbrance against the property of the other party without the other party's written consent. If a debt or obligation of one party is asserted as a claim or demand against the property of the other without the written consent of the other party, the party who is responsible for the debt or obligation hereby indemnifies the other party from the claim or demand, including the indemnified party's costs, expenses and attorney's fees. Any obligation jointly entered by the parties, either prior to or during the marriage, shall remain a joint obligation of both."

    I also add the following language:

    "If either party enters into a transaction wherein either party becomes obligated on any debt, and unless a contrary intent is specifically and expressly stated, the obligation must be satisfied by the party incurring the obligation or liability wholly from that party's separate property, and that party must hold the other party and his or her property harmless from the obligation and indemnify him or her if he or she is ever required to satisfy the obligation. The assets, if any, acquired through any such credit transactions will be and remain the separate property of a party to the extent the party obligates his or her separate property for the credit extended in acquiring the assets or resulting in the acquisition of the assets.

    Each party agrees to indemnify and hold the other party and property harmless from all costs and liabilities arising from all pending and future litigation caused or alleged to have been caused solely by the party's acts or omissions."

    This can at least help to protect both of you to the fullest extent possible from the debts accrued prior to the marriage by any party or any debts accrued after you are married.

    Seth D. Schraier, Esq. Law Office of Seth D. Schraier 3647 Broadway Suite 4G New York, New York 10031 http://... more

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