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William Quigley

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A Modest Proposal: Why Can't Couples Have a Proxy Statement for Their "Merger & Acquisition"?

Posted: 09/29/11 11:18 AM ET

The recent debates over gay marriage, civil unions and what exactly marriage even means today reminded me of how antiquated our marriage and family laws have become. They don't take into account how the nature of wealth has vastly changed over the last few decades. I am neither an advocate nor an opponent of marriage but I do believe that the financial obligations we assume when entering into a marriage contract, including the court-ordered redistribution of personal wealth that takes place upon divorce, are not well understood by most of our citizens. Even lawyers I have known have been confused about the differences between spousal versus child support. If Chris Anderson really wanted to investigate the long tail, he should have taken a look at the potential length of California spousal support terms.

California has always been the leader in divorce and alimony law, and I think it is time the state started addressing the profound inequities alimony judgments have created. In short, alimony has evolved into a pension plan for the less successful spouse. In many cases, this pension commitment becomes a lifelong burden for the paying spouse, regardless of who initiated the divorce and under what conditions the marriage dissolved. It promotes unproductive behaviors as well, such as the alimony recipient avoiding employment in order to maximize spousal support. The spousal support payer may reluctantly forgo re-marriage as well, fearing the income of his/her new partner will be combined for the purposes of calculating higher support payments. If the state believes that promoting marriage among the population is a public good (a reasonable belief), then it needs to reduce the severe financial penalties associated with divorce. And since many marriages do end in divorce, it makes sense to acknowledge, upfront, the consequences of that likely outcome.

One marriage-neutral option would be to provide every couple with a simple disclosure form that highlights the financial obligations they are about to assume.

This disclosure form could easily fit on just a single page, with disclosures of the following sort:

1. The State of California recognizes your marriage as a legally binding contract.

2. By entering into marriage in this state, you agree to assume all debts incurred by your spouse during the marriage, whether or not you were aware of these debts when incurred, and whether or not you personally benefited from them in any way.

3. You also agree to provide monetary payments to your spouse in the event your marriage dissolves and you are the higher income earner. The amount and length of these payments will be decided by a court of law.

4. The State can and will use its court and police powers to enforce the financial obligations you are assuming in the event of divorce, including the garnishment of your wages and your incarceration in the state prison system for your failure to comply with court ordered spousal payments

5. If your spouse so chooses, he/she may divorce you at anytime. In so doing, he/she may be legally entitled to receive monetary payments from you for a time period that may extend to the rest of your natural life. These spousal support payments may exceed 50% of your income, could be adjusted upward if you remarry and as a result have more disposable income, and they cannot be eliminated though bankruptcy.

6. The conduct of your spouse, including him/her having one or multiple out-of-wedlock affairs, does not change your legal obligation to provide spousal support.

7. If you are the higher earning spouse, you may be required to pay your lower earning spouse's divorce related legal bills. This is the case regardless of which spouse initiated the divorce and regardless of the conduct of either spouse during the marriage

8. If you have questions or concerns about what financial obligations you are about to assume, it may be advisable to consult with a family law attorney before signing your marriage contract.

The most important point to highlight when it comes to marriage is that the State of California recognizes it as a legally binding contract. Too often that simple fact is misunderstood or ignored by the couple getting married. In fact, curiously, the one thing the state absolutely does not care about is whether or not a couple is "in love." There is no requirement to be "in love" to be legally married in the State of California, or any other state for that matter. Only in recent human history -- perhaps the last 150 years -- has the predominant purpose of marriage been associated with romantic love. It has nearly always been, and remains in much of the world, primarily an efficient method of property redistribution. In the end, the state, and your future divorce lawyer, care only about one thing: the legal enforceability of the marriage contract as it relates to the financial obligations borne by the higher wage earner.

Our society has become accustomed to warning its citizens of potential legal and financial hazards every time they enter into a contract, even those of relatively small consequence. We as a society like to be informed when we are assuming a financial obligation, particularly one that is potentially large and open-ended. Isn't it odd then that while we require our citizens to initial car rental forms (just in case they didn't realize that they will be charged $6 a gallon to fill the gas tank), we let 18 year olds get married without so much as a tap on the shoulder about the greatest financial liability they will likely ever assume? Keep in mind that we are talking about state-sanctioned marriage, a legally enforceable contract. Shouldn't such a contract, with its profound lifelong financial repercussions, only be assumed by those fully informed of its potential consequences? This is why I completely support a marriage financial obligation disclosure form.