I started conducting marriage ceremonies for family members, first for a nephew, then for a niece, then a close family friend whom my wife and I consider an “honorary niece,” and then another nephew. It appears I am not too bad at this “wedding thing.” The weddings have been a lot of fun and meaningful. In a life story, a wedding is one of the “good chapters.” People in love make a commitment to each other and loved ones draw close to celebrate and be part of this deeply significant event. I decided to share this good will with the greater community in general and have recently been added to the Fauquier County, Virginia Circuit Court list of those authorized to perform Civil Marriage Ceremonies.
Lately, I have come across some misconceptions about the legal aspects of marriage pertaining to my business and estate planning practice. I get questions from those taking risks in business asking me if their spouses will be liable for their business debts. Couples I have seen for estate planning often do not realize that when it comes to important documents, they can not just “sign for” each other.
It is easy to understand why there is so much confusion. When lives are intertwined and intimate, separate legal identities can become blurred. This is especially true when a couple owns most property jointly and as the years go by. One spouse may indeed be liable for the debts of the other but not because they are married. Quite often both partners have signed for a liability, such as a loan or a guarantee, or they may be joint owners of property which is attached by a creditor. Generally, in Virginia, a spouse is not otherwise responsible for the debts of the other. The exception is encompassed in the common law doctrine of necessaries. What is necessary depends on the situation and a judge’s interpretation but critical medical care to save the life of one’s spouse is an example of what would be considered a necessity.
Marriage does not remove the separate legal identity of a person. This is why a durable financial power of attorney is needed so one spouse can act for the other, in the event of disability. While I am on the subject, there also seems to exist a misconception about the use of power of attorney documents. As more “baby boomers” are taking care of aging parents, I have had folks ask me to draft power of attorney documents for their parents to sign. I have also seen power of attorney signed by children with special needs, who are turning eighteen years of age, providing their parents the power to attend to their financial and educational needs. While the impetus behind these documents may be very well intended what often appears to not be given enough deference is one critical fact. A power of attorney, like a last will and testament, requires absolute free will and capacity. In a power of attorney document, one who has legal capacity and free will gives the powers described in the document to another person who is usually called an agent or attorney in fact. Without full capacity and the knowledge of what the document contains along with free will, the power of attorney is not valid and will fail when challenged. Lest I be misunderstood, the power of attorney for an aging parent or a special needs child can be a good idea but free will and capacity is key.
During my wedding we incorporated the three candle ceremony. Each of us was represented by one lit candle which were both used to light the third middle candle representing the two of us together in marriage. Each of us shines our own light and what we share is a matter of choice. The strength of our individual candles make the marriage candle burn even brighter. For more information Email our Office.