Has Anyone Seen a Marriage Contract?

Has anyone actually seen a marriage contract? I’ve tried searches on Google, Westlaw, Lexis — but I can’t find it anywhere. Oh, hold on I have a call. “Oh,  wait — let me type this out for the readers. You’re a family law professor and you say there is no such document called a marriage contract?”  How can that be?  Doesn’t the contract require spouses to support each other? “Yes,” you say, “but there is no actual document.” What? But doesn’t the marriage contract require spouses to pay for each other’s medical bills? “That depends on where they live”,  you say, adding: “but there is no document that contains those terms.”  Wait!  Aren’t there literally hundreds maybe even thousands of complex laws that consequentially affect the economic lives of the spouses upon the words, “I do?”  “Yes,” you say.  (I hear a tinge of impatience in the law professor’s voice. )  I’m saying good bye to the professor.  I think I’m beginning to understand.

Search as we might, no one can gather all the terms of the marriage contract in any one document, because no such document exists. Yet,  once a person ties the knot and their marital status changes, their economic selves will  probably never be the same. It seems like unfair surprise and prejudice to me, not to inform spouses of how they can be affected by these potentially economically life-changing consequences. Shouldn’t they know before they get married? Most of these changes are triggered later, when the spouses are changing their status from married back to single again. At that point, in divorce,  the spouses will have to open their pocket-books to lawyers, to find out who will be the payee and who will be the payor, for alimony, child support, and how the property will be divided.  At that point the unsuspecting spouses will need to mentally absorb all the dizzying  legal complications of dividing property in an equitable distribution state like New York, where equitable means anything but equal, according to a gazillion judges’ rulings, and the state legislatures’ interpretation of the statute itself.    In equitable distribution states like New York, divorcing spouses who have accumulated major assets in longer marriages  — a house, pension, 401K plan, business interests —  must enter the lawyer-world of billable hours. Their legal advocates rack up fees to dutifully track all credits and debits, debts and assets, no matter who holds title, accumulated from the start of the marriage all the way to the start of the divorce. What about a community property state, such as California, where spouses are subject to a fifty/fifty split? Would the husband and wife be saying “I do” if they knew of the actual reality of these consequences?  Or would they be saying “I do not”?

I came across a savvy website, “Guyvorce” in my search — self-proclaimed as the best divorce site for men  — with an article, “Ranking the Greatest and Nastiest States for Alimony.” This is one of the spousal obligations in the marriage contract. The author warns that before men get married, they better know which states are the best and worst for alimony. The site wants to help men avoid having to pay alimony for life. For that reason, Georgia gets a top rating because judges in Georgia usually do not order alimony, according to the author. (I have not independently checked this so before any man convinces his fiancé to move to Georgia, better double check.) From the woman’s side:  How many women in Georgia would accept becoming full time mothers and would choose to stay out of the workforce for a number of years, if they knew beforehand, the chance of obtaining permanent alimony would be about zilch if their husbands were ever to leave them?  The site ranks New Jersey as among the worst because it is one of the “last remaining states where permanent alimony is a possibility.” (Again, I have not independently confirmed this, so caveat, caveat.)

I teach a brand new course I developed, Financial Fraud in Divorce,  at John Jay College  of Criminal Justice, in New York City. At one recent class,  I informed the students that if the woman is the breadwinner in the marriage, under New York’s laws,  she might have to pay alimony to her ex. The women in the class practically gasped out loud, and one of them quipped: “I’d rather quit my job than pay alimony to a man.” The thought of paying alimony to a man may be distasteful to the student (and tossing the conventional sex roles aside)  but at least she now has been informed!

If straight people in conventional husband-and-wife marriages have trouble accepting these consequences because nothing has been explained to them, then what about those in same sex marriage? Same sex couples are just as unawares as their straight counterparts. People advocating for same sex marriage fought hard and valiantly in this country to receive the benefits of marriage, but why hasn’t anyone told them about about the economic downsides that come as consequences of the marriage contract? They don’t know that the marriage contract will bind them to them to the very same complex laws, like no other contract can.

Some lawyers may appreciate the irony here — contracts are supposed to be based on mutual agreement between the parties. But in this case, apart from the  spouses’ mutual agreement to be committed to each other, the real force of the contract is to bind the unknowing spouses to legal obligations and rights, with huge, potentially negative economic ramifications,  of which the spouses cannot opt out. What kind of contract is that? The system that applies these laws delivers another shock to the unwary:  all lawyers know the divorce court system is essentially pay to play — no money to pay lawyers’ legal fees means no service! The legal service that is available is typically prohibitively expensive, and the process takes too long. (I’ve seen cases where a  financial equitable distribution and maintenance (alimony) case has dragged on for ten years.)

Now I think I get it. With its invisible ink, unstoppable force and unknowable contents, the marriage contract wreaks untold economic havoc, because spouses are kept in the dark and don’t know what to expect. These laws are compulsory,  locking in spouses who then often can’t afford to purchase the legal care they need to respond to their obligations and rights under these laws. Or they can afford the legal fees for awhile but are vulnerable to financial abuses in the system, and can be exploited and stripped of their financial resources before their issues are resolved.

A few legal scholars have suggested providing informed consent to people  at the time they apply for their marriage licenses. The legal obligations and rights between the spouses could be explained. A simple brochure would do.  I don’t think it would ruin anybody’s wedding plans.  That is, unless your spouse-to-be suddenly starts talking up Georgia as a new possible home.