Marriage FAQ

Family Law / Marriage FAQ

REQUIREMENTS

Q: What are the requirements for marriage in Ohio?

A: Ohio law imposes a number of requirements which must be met before a couple may legally marry. These include the following:

• Age: In general a male must be at least 18 and the female at least 16 years old. A minor must first obtain the consent of his or her parents or guardian. Pre-marriage counseling is required when either party is under the age of 18.
• Mental and physical capacity: Since marriage is a contract, each individual must possess the mental capacity to understand the nature of the marriage relationship. Also, each must possess the physical capacity to consummate the marriage.
• Kinship: The couple must not be nearer of kin than second cousins. It should be noted that adult incest (marrying or having sexual relations with someone who is nearer than a second cousin) is no longer a criminal offense in Ohio.
• Single status: Each individual must be single. The crime of bigamy is committed when someone marries knowing he or she is still married to someone else.
• Heterosexuality: Individuals of the same sex cannot bind themselves in legal marriage in Ohio.
• Marriage license requirement: A license must be obtained from the probate court in the county where either of the couple resides or, if neither is a resident of Ohio, where the marriage is to be performed. Both parties seeking the license must personally appear in the probate court and apply for the license. However, this requirement can be waived if either is ill or disabled and provides a physician’s affidavit to that effect. Also, no license will be issued if either of the applicants is under the influence of alcohol or drugs.

Failure to follow the various requirements could provide grounds for an annulment or for having the marriage later declared void by a court.

Q: Who may perform the marriage?

A: Under Ohio law the following persons are authorized to bind a couple in marriage:

• an ordained or licensed minister of any religious society or congregation who has obtained a license issued by the Ohio Secretary of State;
• any municipal, probate, or county court judge;
• the mayor of a municipality;
• the superintendent of the State School for the Deaf; and
• any religious society according to its rules and regulations.

This authorization provision also applies to certain religious sects that have no regular clergy. In such a marriage ceremony, the bride and groom exchange their marriage vows in front of the congregation and proclaim themselves to be husband and wife.

Q: Must the couple recite specific words in order to become legally married?

A: No. Rather, it is the intent of the parties–expressed in the vow of marriage–that establishes the marriage contract. The vow does not need to include any specific words, but it must express the couple’s intent to take of each other at the moment it is spoken; it cannot be a promise to do something in the future. Also, no religious ceremony is required.

Q: What are the rights and duties imposed on a couple when they marry?

A: In its most basic terms, marriage is a legal contract which creates a unique relationship between a man and a woman. Ohio law imposes on them a basic duty of mutual respect, fidelity, and support. This means that each has the duty to care, support, and protect the other. In addition, each has a right to the company, cooperation, society, sexual relations, conjugal affection, love, comfort, and solace of the other. This bundle of rights is often called the “right of consortium.” Anyone who interferes with these rights by negligently or intentionally injuring a spouse could be sued by the other spouse.

Q: Can one spouse still sue another for “alienation of affection”?

A: Before 1978, Ohio allowed two types of lawsuits that flowed from the mutual obligation of fidelity in marriage: “alienation of affection” and “criminal conversation.” In an alienation of affection lawsuit, an aggrieved husband, for example, would sue his wife’s lover for wrongfully and intentionally causing his wife to lose her affection for him. To win such a lawsuit, the husband had to prove that the intruder intentionally injected himself between the husband and his wife and wrongfully destroyed the relationship, the love, and affection. Where there was no existing love and affection, or where the spouse was actually the aggressor, the offended spouse would not win.

In a criminal conversation suit, adultery was the key element. The aggrieved husband, for example, would sue his wife’s lover for violating his exclusive right to sexual relations. In a criminal conversation suit, it was not necessary to show any alienation of affection; the suit was simply for damages for violating the spouse’s exclusive right to sexual relations.

Even though 1978 legislation prohibited these types of lawsuits, some individuals have filed similar suits since then against an intruder to the marriage, alleging that the intruder’s actions constituted the “intentional infliction of emotional distress.” Lower courts have awarded money damages in these types of actions. However, the Supreme Court of Ohio overruled these lower court decisions by declaring that “alienation of affection” and “criminal conversation” lawsuits cannot be revived under the term “intentional infliction of emotional distress.”

Q: Are there other consequences of marriage?

A: Yes, they include the following:

1. A husband and wife may enter into legally binding contracts with each other and may individually contract or conduct business with other individuals without the partner being involved.
2. Except for dower rights and the right to remain in the home after the death of the other, a husband or wife may individually own property as if they were not married.
3. Neither can be held responsible for the acts, crimes, or negligent action of the other. Except for the legal provision making each spouse responsible for “necessities” charged by the other, neither spouse is liable for the debts of the other, including those incurred by either before the marriage.
4. The couple cannot agree to stop supporting their children or to change the obligations imposed upon them by law.
5. The couple is jointly responsible for the care, education, and welfare of their children and each has equal right to custody until a court grants to one of them custody according to a court order.
6. A married woman may sue or be sued and any judgment the court may make can be enforced as if she were not married.

Q: Must a woman assume her husband’s last name?

A: No. Nothing prevents a woman from keeping her own last name. The taking of the husband’s last name is the result of custom and not a requirement of law. In addition, a woman may also assume a hyphenated last name by joining her last name with her husband’s.

If a woman assumes her husband’s last name and the marriage is ultimately terminated, the divorce/dissolution decree may contain a provision that restores the woman to any name she had prior to the marriage.

BIGAMY

Q: What, exactly, is bigamy?

A: Bigamy is defined as the criminal offense of marrying one person while still legally married to another. The literal meaning of bigamy is “second marriage.”

Q: Is bigamy a crime in Ohio?

A: Yes, it is considered a crime in Ohio. It is a first degree misdemeanor (the highest degree of misdemeanor offenses) and, if proved, is punishable by up to six months in jail.

Q: I was married when I was very young and I thought my first marriage was annulled, but I just learned that the marriage had never been terminated. I have since been married a second time. Have I committed a crime?

A: If you honestly believed that your previous marriage had been annulled, then you did not intend to commit bigamy. You cannot be convicted of bigamy unless “intent” can be proven, so your belief that your previous marriage had been terminated is a complete defense to the charge of bigamy.

Q: My husband and I have been married for ten years and have three children together. I’ve been a stay-at-home mom for our entire marriage. He has always traveled a lot on business, but I just learned that, for the past two years of our marriage, he has been living a double life. He has a second wife and an infant child who live in Ohio about two hours away from our home. What legal remedy do I have?

A: Ohio law provides that you may choose to start an action to annul your husband’s second marriage. A marriage that is not legal and binding under Ohio law can be “annulled”. If a marriage is annulled, it is erased, as if it had never existed. By initiating an annulment action, you will be protecting the rights afforded to you under the law, such as spousal support, an equitable distribution of all marital assets, and a portion of your husband’s Social Security benefits. While the second wife is entitled to child support (if she chooses to initiate a child support action), she would not be entitled to these other rights if her marriage to your husband were annulled.

Q: If I initiate an annulment action, would I still be able to divorce my husband?

A: Yes. Once his second marriage is annulled, you can initiate a divorce action against him. Also, you would be entitled to compensation for all the money he used from your marital assets to support his other family.

SAME SEX MARRIAGE

Q: What does Ohio law say about same-sex marriage?

A: According to the Ohio Constitution, only a union between one man and one woman is recognized as a valid marriage by the state and its political subdivisions. The Ohio Constitution also says that neither the state nor any political subdivision may create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

In addition, Ohio law says that any marriage between persons of the same sex is against the strong public policy of the state, has no legal force or effect, is void ab initio (null from the beginning) and will not be recognized.

Q: Ohio’s domestic violence law protects “persons living as a spouse”. Is this now unconstitutional because it recognizes a legal status equivalent to marriage?

A: No. Although the domestic violence statute does provide protections to a “person living as a spouse,” the Supreme Court of Ohio has ruled that there is no conflict between the domestic violence statute and the constitution’s prohibition against creating or recognizing a “marriage” status for relationships of unmarried individuals. The domestic violence statute prohibits anyone from causing physical harm to a family or household member; “a person living as a spouse” comes within the definition of “family or household member.”

Although the domestic violence statute appears to recognize a legal status similar to marriage, the Supreme Court of Ohio stated that the term “person living as a spouse” merely identifies a particular class of persons for the purposes of the domestic violence statute. It does not create or recognize a legal relationship that approximates the design, qualities, or significance of marriage as prohibited by the Ohio Constitution. It should be noted that this particular Supreme Court case involved a man and woman, and the alleged victim had been living as a spouse with the perpetrator.

Q: Does Ohio have to recognize a same-sex marriage established in another state?

A: No. The federal Defense of Marriage Act says that states do not have to recognize a same-sex marriage that was performed in another state, and Ohio law specifically states that same-sex marriages established in other states will not be recognized. Furthermore, federal law also states that the word “marriage” means a legal union between a man and a woman as husband and wife, and the word “spouse” refers to a person of the opposite sex who is a husband or a wife. Lastly, the federal government will not recognize them for taxation purposes or for other considerations.

It is unusual for the federal government to allow states to refuse to recognize and give full faith and credit to a public act or judicial determination rendered in another state. Usually, a state must uphold the public actions or court decisions of another state. For example, even though a “common law” marriage can no longer be established in Ohio, a common law marriage legally entered into in another state will be recognized by Ohio.

Q: May private companies provide benefits to same-sex couples?

A: Yes. Nothing prevents or affects the validity of private agreements that are otherwise valid under Ohio law. The law does say that it is against public policy for the General Assembly and various state agencies and institutions to extend benefits of a legal marriage to same-sex couples or unmarried heterosexual couples. This prohibition does not, however, include either the private sector or political subdivisions.

MARRIAGE AFFECT ON BUSINESS INTEREST

Q: I am a business owner and plan to marry. Is there anything I can do to protect my business interests before I marry?

A: Yes. Consult an attorney about drafting a prenuptial agreement for you and your future spouse to sign in advance of the wedding. In such an agreement, you can state ahead of time who will be entitled to your business interests in the event that your marriage should end. For example, you might want to stipulate that your future spouse would not be entitled to any business interest that you now own, or any appreciation of a business interest you now own, and/or any business interest you might acquire later.

If such an agreement is in place and you later divorce or die, a court would follow the terms of the prenuptial agreement in distributing the value of your business interests. (By contrast, courts are not obligated to follow the terms of the prenuptial agreement regarding spousal support awards and can reassess spousal support at the time of the divorce.)

Q: If we decide not to make a prenuptial agreement and later divorce, what would happen to my current ownership interest in my business?

A: The value of the interest that you accumulated in your business before the marriage would be considered your own separate property and generally would be awarded to you and not your spouse. However, if the business interest that you owned before the marriage appreciates after the marriage, or if you acquire a new business interest after the marriage, then these interests would be considered “marital property” and your spouse generally would be entitled to receive one half of the value.

Q: If we decide not to make a prenuptial agreement and I die before my spouse, what would happen to my ownership interest in the business?

A: Without a prenuptial agreement, your spouse may be entitled to receive some portion of the value of your interest in the business. For example, if you wrote a will leaving the entire interest to your children by a previous marriage, your spouse has the right to “elect against the will” and automatically take a portion of the share that was left to your children. If you die without a will, state statutes provide that your spouse would still be entitled to a share of your interest. (If you have no children and die without a will and without a prenuptial agreement, your spouse generally would be entitled to inherit all of your interests.)

Q: I just became engaged and I’m planning to marry in about six months. I hate to wreck my romance and would rather wait until all the wedding details are out of the way before working out a prenuptial agreement. Is there any hurry?

A: The biggest mistake that most people make regarding prenuptial agreements is waiting too long to consult an experienced domestic relations attorney, then trying to negotiate an agreement too close to the wedding. The circumstances surrounding the signing of a prenuptial agreement must follow a fair procedure or the agreement may be unenforceable. In determining whether or not to uphold a prenuptial agreement, courts look at how much time both spouses had to consider the agreement, whether both spouses understood the agreement, whether both spouses had counsel, and whether there was full financial disclosure (including full financial disclosure of business interests).