Legal Rights and Responsibilities While Married

Source: With two exceptions, this section was based upon a 1998 Women’s Law Center publication entitled, ”Legal Rights in Marriage and Divorce” and was last updated by the Maryland Legal Assistance Network in January 2001. The section “If One of You Dies”  is drawn from the same booklet in the most recent version produced by and available from the Women’s Law Center and was updated on 11-29-00.  

Pre-Nuptial Contract
Using Your Birth Name
Legal Duties 
Parental Responsibilities 
Property Rights 
Source

Pre- Nuptial Contracts

Sometimes couples create contracts between them about property and inheritance rights before an anticipated marriage. These are called pre-nuptial or ante-nuptial contracts. Through such contracts, the parties may agree on a multitude of issues, including: 

• Property rights in property acquired before or during the marriage;

• Inheritance rights, including special provisions for children by previous marriage or for any children born of the upcoming marriage; or,

• Alimony issues and/or monetary awards.

Generally, valid pre-nuptial contracts remain enforceable after divorce. However, the contract must usually be in writing and signed by both parties. Verification of a signature by a notary public, although not required, would further validate the document in later court proceedings.  

In addition, both parties should be represented by independent counsel. Even if the parties choose to draft their own contract, it is a good idea to consult with a lawyer on the type of language that should be used in the document.  

A couple may not validly contract before marriage to divorce afterward. Nor will a written promise to marry be enforced, unless the woman is pregnant. In Maryland, there is also no legal action for alienation of affections. 

If brought to a court, the court will analyze the contracts on a case-by-case basis using the factors described in a case called Hartz v. Hartz, 248 Md.47, 234 A2d. 865 (1967).

Using Your Birth Name

Upon marriage, a woman may keep her birth name or adopt her husband’s last name.  Maryland law does not require a woman to use her husband’s last name. 

A woman must show “…a clear intent to consistently and non-fraudulently use her birth given name subsequent to her marriage.”  She must use the same name for all legal purposes.  If a woman adopts her husband’s last name, her driver’s license and voter registration must be in her married name.

A woman may find retail stores insisting that purchases on credit be made in her husband’s name, but this policy is unlawful if the woman herself is creditworthy.

If a woman takes her husband’s name after marriage, she can resume her birth name after the divorce without obtaining a court order.  However, it is sometimes easier just to obtain an Order.  At the time of the divorce, restoration to a birth name can be done upon request without additional cost.

Legal Duties 

Support of the family - A spouse who is financially able to support his/her family and does not can be criminally liable for the willful failure to support and maintain the family. If a spouse fails to support, s/he may be prosecuted unless s/he can show just cause why s/he failed to support the family during the course of the marriage and upon separation.  The spouse may be ordered by the court to supply the family with such support as that person is able.  In addition, that person may be subject to a fine or imprisonment.  Complaints alleging non-support should be filed in the office of the state’s attorney serving the place of residence (county or Baltimore city) of the spouse who has received no support.  Some offices will refuse to prosecute if the husband and wife are living together. A spouse’s support obligation in a proceeding for separate maintenance or for divorce may be excused if, because of illness or involuntary unemployment, the spouse is unable to provide support.

Deserting the family - When a person leaves his or her spouse without having grounds for divorce, the right to alimony may be affected. Despite the strict requirements of the law, it is far too common for a husband to desert and to leave his wife and children with no income.  To address this situation, all of the states have enacted laws that allow a spouse who was left to bring suit for support against a deserting spouse. This can be done in the state where the deserting spouse resides, if the deserting spouse’s current address is available. Information on making this type of claim can be found on the Maryland State Deparment of Human Resources website.  

If the deserting spouse leaves the state, the other spouse may present the case in a local court that will forward the evidence to a comparable court in the state where the deserted spouse is living.  After a hearing in that state, the second court may order the deserting spouse to make the necessary payments and will forward such payments to the Maryland court which will arrange to pay the funds to the parties living in Maryland.

Parental Responsibilities 

The father and the mother of a child share the legal obligation to support their family, and both parties are liable for necessary family expenses.  

The father and the mother are deemed the joint natural guardians of their minor children.   Together and individually, the parents are held responsible for a child’s support, care, nurture, welfare and education until the child reaches the age of majority, usually 18 years of age.  Neither has a superior right to the custody of the child, but normally, if either dies or deserts the family the other parent becomes the sole guardian.  A court may award the child’s sole custody to either parent when the couple separates or divorces or may appoint a third person as the guardian if the parents are found unsuitable or harmful to the child’s best interests.  Both parents should provide in their wills for the appointment of a guardian in the event that both parents die.

Property Rights

A description of what is marital property (jointly owned by both spouses and subject to certain special rules) and what one spouse owns individually can be found in the Library section on divorce

Selling Joint Property - Property jointly owned by husband and wife cannot be sold by one, without the consent of the other.  Creditors of one spouse cannot make a claim to joint property.  However, a creditor of both husband and wife may move against the property jointly owned by both husband and wife. 

If One of You Dies - Upon the death of either spouse, the survivor becomes the sole owner of property held jointly by the couple. This is in addition to the property rights discussed below. 

A Spouse Who Dies Without a Will  - If the spouse who dies has not written a will, state law governs the division of his or her property. The share of the surviving spouse depends, generally, on whether there are surviving issue (meaning children, grandchildren, great grandchildren, etc.) or surviving parents of the person who died.  

If there are surviving children and any of these children are under the age of 18, the surviving spouse receives one-half of the property of the estate after all debts, funeral expenses and taxes have been paid. If there are surviving children, but none of the children are under the age of 18, the debts, funeral expenses, and taxes are paid and then the surviving spouse receives the first $15,000 plus one-half of whatever is left. The children share equally the other half.  

If there are no surviving children, but there is a surviving parent of the person who died, the debts, funeral expenses and taxes are paid and the surviving spouse then gets $15,000 plus one-half of whatever is left. The other half passes to the surviving parent or parents.  

Finally, if there are no surviving children and no surviving parents, the surviving spouse receives all the estate remaining after debts, funeral expenses and taxes have been paid.  

Last date of legal review 02/01/08