The Most Important Contract You Never Negotiated
Ben Schenker
This weekend, my wife and I decided to do some fall cleaning before we are cooped up all winter. During that excavation, I came across one of the most significant contracts I have ever entered into.
I also remember how burdensome it was to dissolve. Under the terms of the agreement and the law, I essentially had to wait more than a year to get out of it. And what might be craziest is that, even though it was an extremely impactful agreement, at no point before I entered it did anyone advise me to speak to a lawyer.
If that sounds like my agreement to take out student loans, I get it. (It is odd that we, as a society, have decided that people whose brains are still developing can take on loans that may be impossible to get out of, even in bankruptcy.) But it isn't that. It wasn't an agreement to serve in the military, either.
I am talking about my first marriage agreement.
To be clear, what I found was a copy of a Ketubah, a traditional Jewish marriage contract. It is not a prenuptial agreement, which is the kind of marital contract people usually mean. In fact, the law requires a license to marry, not a contract. So the Ketubah got me wondering about something more basic: is marriage a contract at all?
Does a marriage require a contract?
Not a written one. To marry, a couple generally needs a license and a ceremony. Many states also expect the couple to declare, in front of the person performing the ceremony, that they take each other as spouses. Nothing says they must sign an agreement spelling out what they owe one another.
The law also leaves the ceremony itself largely to religious communities. Maryland's Family Law Article § 2-406 lets any official of a religious order or body perform a ceremony if that group's own rules and customs authorize it, and it preserves each denomination's right to marry people in its own way. D.C. Code § 46-406 takes a similar approach, allowing religious societies to solemnize marriages as they practice them. It even lets the couple solemnize their own.
California, where I entered my first marriage, follows the same principle. Its Family Code says a marriage contract that is otherwise validly made cannot be invalidated because it fails the requirements of a particular religious sect (California Family Code § 420). So my Jewish and interfaith ceremony, and the Ketubah that came with it, gave us a real marriage contract. It just was not a legal requirement.
There is another way marriage differs from most contracts. A typical contract fails without consideration, meaning a real exchange of promises or value. A marriage does not need it. No one asks what each spouse is giving up or getting. Capacity, consent, a license, and a ceremony do the work.
Put together, the First Amendment's protection of religious freedom and each faith's freedom to set its own ceremony mean the law cannot demand that couples sign any particular contract. A license and a ceremony are enough.
But something is still fishy
Even though marriage does not require a contract, the law keeps describing it as one. California's Family Code § 300 calls marriage a personal relation "arising out of a civil contract" and says the consent of parties capable of making that contract is necessary. Consent alone is not enough, though. It must be followed by a license and a ceremony.
So marriage looks like a contract on the way in. It has capable parties, mutual consent, and formalities. But the Supreme Court said back in 1888, in Maynard v. Hill, that marriage is "something more than a mere contract." It is a status, and the state keeps control over it.
That is the difference that matters. Compare a marriage with an ordinary contract:
Who writes the terms. In a contract, the parties do. In a marriage, the state’s legislature decides the duties it creates, what it does to your property, and the grounds for ending it.
Whether the terms can change. A private contract generally cannot be rewritten by one side after signing. The Court in Maynard held that a legislature can change the rules of marriage without violating the Constitution's protection of contracts.
Who else is at the table. The state is an invisible third party, with its own interest in spouses, children, and public benefits.
How you get out. Parties to a contract can usually release each other. A marriage generally ends only by a spouse's death or a court's judgment.
In other words, it is a form contract whose terms were written by someone else, and most of us never read them.
What you really agree to
The terms the state writes touch an astonishing amount of your life. When the Government Accountability Office counted in 2004, it found 1,138 federal statutory provisions in which marital status is a factor in determining benefits, rights, and privileges. That count dates to the end of 2003, and the GAO cautioned that some provisions may not directly create a benefit. The exact number today is different. The scale is the point, and that is before counting state law.
Here are some of the areas a marriage license reaches:
Property: How assets acquired during the marriage are owned and divided if it ends.
Support: Whether one spouse may owe the other spousal support after a separation.
Death: Inheriting when there is no will, claiming a share when there is one, and priority to manage the estate.
Taxes: Filing jointly, and moving property between spouses without gift or estate tax.
Federal benefits: Social Security spousal and survivor benefits, plus certain veterans' and federal employee benefits.
Health care: Making medical decisions when your spouse cannot, visiting in the hospital, and access to coverage.
Children: The presumption that a spouse is the legal parent of a child born during the marriage.
Courtroom: Privileges that can keep a spouse from being forced to testify, or keep marital communications private.
Immigration: The ability to sponsor a spouse for status in the country.
One signature, one ceremony, and all of that attaches. If you are unmarried, almost none of it does, unless you build it yourself.
Getting out, and what to do before you sign
That brings me back to my year-plus wait. Many states require a waiting period or a period of separation before a court will end a marriage (six months separation and a residency period was required for me where I lived; D.C. does not impose such a restriction now [D.C. Code § 16‑904(a)] while Maryland allows for divorce to be granted immediately if the parties mutually consent to it [Maryland Family Law Code § 7-103(a)(3)]. and a court must approve how property, support, and children are handled. You cannot simply tear up the agreement and walk away. In that way, a marriage resembles my student loans: easy to enter, hard to leave, and entered into, for the most part, without anyone suggesting you get advice.
If you are about to marry, or already are, a few steps are worth taking:
Read the real terms. The contract that governs your marriage is the state's default rules. Ask what they say where you live.
Talk to a lawyer before the ceremony. This matters most for second marriages, later in life marriages, blended families, business owners, and anyone with significant assets or debts.
Consider a premarital agreement. It can change some of the defaults, within limits. Courts will not necessarily enforce every term, and some protections, such as a child's right to support, cannot be bargained away.
If you are not marrying, build your own protections. Wills, powers of attorney, health care directives, and a written partnership agreement can recreate much of what a license provides. Remember that the most important terms of a marriage were written by someone else, long before you said "I do." That deserves a conversation with a lawyer before the paperwork, not a drawer-cleaning discovery years later.
This post is general information, not legal advice. Marriage law varies by state, so check the rules where you live.