By Adam D. Schmaelzle, Esq.
What if your marriage came with the same security as your new car, with its 10-year/100,000 mile warranty?
Marriage is defined as the legal union of a couple as spouses. There are three basic elements: (1) the parties legal ability to marry each other, (2) mutual consent of the parties, and (3) a marriage contract as required by law.
As I read that definition I can’t help but think back to a scene from the 1995 movie Braveheart, when Mel Gibson and his fiancé exchange pieces of cloth to signify their secret wedding in the woods. I think of that scene, not because as an attorney in Massachusetts (a state which does not recognize common-law marriages), a light goes off in my head flashing the words “Grounds For Annulment”, but because I realize there is a major separation between the way that most people view the purpose behind a marriage and the way that the state does. More relevant to this article, I have noticed that many people view the actual purpose of marriage differently after they have gotten divorced.
Did you know that most divorces are filed around Christmas time? In fact, the month of January is now being commonly referred to as the “divorce month”. There are several theories why that is. Some say it is because people who are in unhappy relationships look for new beginnings as their New Years resolution. Some say that when a couple has children, they like to give the kids one last happy holiday before they separate. Personally, I don’t have a clue, but I’ve been told that those holiday visits from the in-laws are enough to end a happy marriage.
So back to Braveheart. In my opinion, it seems like couples generally look at marriage as a symbol of their love for each other, rather than as a contract. Unfortunately, the state disagrees, and when a married couple decides to become divorced, a long drawn out battle of who gets what begins. I am simply amazed by the amount of paperwork that I go through when a client gets divorced. Massachusetts Probate and Family Court rule 410 requires an initial slew of documents to be produced from both parties within 45 days of the date of service including bank statements from the past three years, federal and state income taxes for the past three years, mortgage applications, loan documents, 401k information, pay stubs….. It usually comes in a packet about eight inches thick, and could easily consume a full working day. But remember, these are just initial documents. Couples rarely understand how long the divorce process can actually take. Anyway, my point is this; unless your name is Kanye West, and you’re screaming at the top of your lungs, “We Want Pre-nup, We Want Pre-Nup,” you’re probably spending more time thinking about how happy your life is going to be with that person, rather than Rule 410 documents in the event of a divorce.
There must be a solution. A way to safeguard the sanctity of marriage without turning your relationship into a business deal, or better yet, without forcing yourself to stay in an unhappy marriage because the threat that a divorce could financially cripple you.
Well, in order to find a solution, we have to first find the problem. Why do people get divorced? Well, in my search for an answer, I found several. But the common theme is that there is a breakdown of communication. Obviously there are countless other reasons, including infidelity, financial difficulties, religious strains, yada yada yada. But all in all, it isn’t a stretch to believe that many divorces end because of a lack of communication.
So why do peoples’ ability to communicate with each other go south? Why do any of the other reasons lead to divorces? Because people change. We would like to think that as we grow older, the changes we undergo will continue to make us a good match for our significant other. Unfortunately, that isn’t always the case.
Alright alright, what about that solution.
Now earlier, I said that there must be a way to safeguard the sanctity of marriage “without turning your relationship into a business deal.” Well, what I am about to say is going to look a lot like a business deal, but hear me out.
10-Year Marriage Contracts.
What is it: It is essentially exactly what it sounds like. Rather than signing a traditional marriage contract under the understanding of “till death do us part”, a couple is signing a contract for marriage for a set period of ten years. Around the ninth year, the couple can look at their marriage, and decide if they would like to make a new Marriage Contract, with new terms, for another ten years, or just decide that ten years was enough, and it’s time to move on.
It turns out, Article 20 of the family Code of the Philippines states that a marriage license is only valid for a period of 120 days from the date of issue. If the parties have not made use of it by the end of that period, it is automatically cancelled. (See link below).
One organization in the Philippines, known as 1-ABAA, which represents separated and abandoned women, has been pushing to enact a law that would put a 10-year limit on the validity of a marriage contract. Its purpose was stated, “to spare incompatible couples the expense of lengthy legal proceedings before their marriages are annulled.” (See link below)
Obviously Article 20 of the Family Code of the Philippines creates different reasons than we would have in the United States to necessitate a regulation like the one 1-ABAA is pushing for. But could the purpose of that regulation be the same? Could a time limit spare couples the expense of lengthy legal proceedings?
Now the only way this could work is if the marriage contract was supplemented with a prenuptial agreement (thanks Kanye). That way, if the couple decides after ten years that the marriage should be no more, they aren’t going through the same rigmarole that any other divorced couple goes through.
The agreement would have to have some emergency separation clause, just in case there is some extreme change of circumstances, such as spousal abuse, cheating, desertion, unreasonable behavior or one of the parties gets sentenced to jail for 11 years.
One writer suggested that if a married couple is suffering from a lack of communication, a forced communication (around the nine year mark) about the future of a marriage can only be good for a relationship. (See link below)
Why ten years? Honestly, I have no idea. It’s an even number? Who doesn’t love even numbers? What about the theory that humans go through a new developmental life cycle every seven years? That gives you three extra years to figure out if you even like your spouses new life cycle (lame argument). The point is, a lot can happen to a person in ten years, financially and otherwise.
Can this type of contract cause more harm than good? What if someone truly wanted to be out of the marriage at year five? What would the consequence be? I guess proponents of the 10-year marriage contract seem to leave that up to the couple to figure it out on their own and put it in their pre-nup. Essentially, the person who left at year five would be in breach of contract, and would be liable to the non-breaching party for damages.
But how is a 10-year contract any different than an ordinary prenuptial agreement? Wouldn’t these contracts just force a couple to renegotiate a contract at the ten year mark?
What if a couple reaches the 10-year mark, and they have three children? Does that give a man or a woman an easy out that they may not have taken in the absence of this type of contract?
Think of an employment contract. Many times, when an employee reaches the end of their employment contract, they start opening their minds to other opportunities.
One particular divorce attorney (who prefers to remain anonymous), believes that this type of contract will likely increase the rate of divorce. “If the fear is divorce, get a pre-nup, or don’t get married.”
We all know that there is a high rate of divorce. Committing to a person for your entire life can seem unreasonable to some people. Putting a number of years on your commitment, with the option to do it again might give some individuals the comfort they need to commit to a marriage. For others, the traditional marriage, “I do,” is the only warranty they will ever need.