This past week I met with two separate clients who were each planning to get married. One of them was hiring me to assist them with a premarital agreement. The other wanted information about what a premarital agreement was, but was really much more interested in understanding what marriage meant legally. Back when I was preparing to get married I never even thought about what I was legally getting myself into. In this week’s blog we tackle the legal contract which is marriage, explore some of the fine print, and then consider possible changes to the process of getting married that might include a contract confirming the legal commitment being made to insure couples know what they are getting themselves into.
The Legal Contract of Marriage. We all know the traditional wedding vows, “I, so and so, take you, so and so, to be my lawfully wedded spouse, to have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish, till death do us part”. That seems to be the extent of the clarification of the commitment being made. The law of our state doesn’t seem to necessarily hold couples accountable for these vows made. There are, however, some very specific rights and responsibilities that arise when couples marry.
The Nuts and Bolts. One thing we do usually recognize is that when we get married we establish certain rights to benefits such as health insurance coverage through our spouse’s employer, and the ability to file taxes jointly. Other than that, we don’t usually have a good grasp of the legal impacts. One large impact of marriage is that a very significant fiduciary obligation arises that each spouse is responsible for treating the other with good faith and fair dealing. In their dealings with each other they cannot take unfair advantage of the other. Prior to getting married, this same obligation does not exist. California also has a number of other legal rights and responsibilities that arise from marriage. We are a community property state and from the date of marriage until the date of separation, any assets accumulated and any obligations incurred, are presumed to be community property, and the couple has an equal interest and responsibility in these assets and debts. Upon marriage spouses also assume a responsibility for taking care of each other financially. In the event of a divorce a higher earning spouse will likely have an obligation to provide support for some duration to assist the other spouse with meeting their needs and continuing to enjoy a lifestyle similar to that enjoyed during the marriage.
In addition to these basic rights and responsibilities, there are statutes and cases that establish a patchwork of other highly detailed rights and responsibilities that attach upon marriage. They are not spelled out in the vows taken during our wedding ceremonies and they are not laid out in any marriage contract that we sign at the time of marriage. Couples are not made aware of these commitments they are making until they find themselves in their divorce attorney’s office.
Comparing marriage to the typical contract. To typically enter into a contract, there is the requirement for an offer, acceptance and consideration. There must be a meeting of the minds regarding the terms. Both parties need to know what they are getting into. Expectations need to be clear. When a couple enters into a premarital agreement, all the terms must be in writing, both sides need to have legal counsel, each party needs to have at least 7 days to review the document before it can be signed. When we create a contractual responsibility it is very important to show clarity in the terms so there can be a clear expectation of compliance with the terms. This is not the case with the marriage contract. Unless you are a divorce attorney who is entering into a marriage, there is likely little to no chance that you know what you are signing up for. You are not even given the opportunity to review the small print, because the commitment you are making is not in writing.
What to do about it? Unlike this soon-to-be-married client that I met with earlier this week, most couples who are planning to get married do not meet with a legal professional to gain a clear understanding of what they are getting themselves into legally. The exception is couples who are looking into getting a premarital agreement as they prepare for marriage. When they do so their attorney will explain the commitments that arise with marriage, and the options to avoid or otherwise change those commitments by entering into an agreement which does so. I contend that there should be some sort of marriage contract with every marriage that gets signed by the couple clearly outlining the legal commitments being made.
I’m really not trying to ruin things. Marriage is an exciting time. We have hope for a happy and successful future. Why do we have to ruin it with all this legal talk? I am all for dreamy and carefree weddings, but there must also be a practical side to it all. When couples marry they are entering into a very lengthy, unwritten contract, with very detailed terms, which create substantial responsibilities and commitments untold. As divorce professionals we know what these commitments are. We spell them out for our clients as we help them work their way through divorce. They are often surprised by what they hear from us, which is completely understandable because they were never told. Each person about to embark on the adventure of marriage should know exactly what they are getting into so they can choose to do so with eyes wide open. We don’t hold other people accountable for unwritten contracts with unspoken terms. Maybe it is time for getting married to have the additional requirement of a marriage contract that spells out all the commitments that arise that moment we say “I do.”