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301 North Main Street, Suite 2503
Winston-Salem, NC 27101-3835
(336) 283-0284
info@RickRutledgeLaw.com

Family Law

The Marriage Contract

Religious marriage is a commitment before God and your religious community.  How God and your religious community deal with your divorce is none of my business, and way beyond my influence.

Civil marriage is a binding, legal contract.  (Uncomfortably binding, some comedians would say.)  Divorce is a lawsuit for breach of that contract.  When you marry, you accept the terms of that contract, whether you realize it or not.  Whether you and your spouse enforce the terms of the contract while you are married is up to you.  The terms of that contract will be applied when you divorce.

"The Sanctity of Marriage"

William Shakespeare, in his Sonnet 116, said:

Let me not to the marriage of true minds
Admit impediments. Love is not love
Which alters when it alteration finds,
Or bends with the remover to remove:
O no! it is an ever-fixed mark
That looks on tempests and is never shaken;
It is the star to every wandering bark,
Whose worth's unknown, although his height be taken.
Love's not Time's fool, though rosy lips and cheeks
Within his bending sickle's compass come:
Love alters not with his brief hours and weeks,
But bears it out even to the edge of doom.
If this be error and upon me proved,
I never writ, nor no man ever loved.

What this means, as only Shakespeare could say it, is "If you're really in love, nothing can come between you."  For the record, Reality is not Poetry.

Things can come between you, if you let them.  Or if you weren't truly in love.  Or if you didn't understand what you were committing to.  Or if you didn't realize that "loving someone" and "living with (and getting along with) someone for the rest of your life" are VERY different things.  The first makes the second easier, to be sure.  And with the first, you'll work a LOT harder to make the second happen.

I am a child of divorce; my parents divorced when I was 7.  This could be a contributing factor in my views on divorce and the sanctity of marriage.  That being said...

The Ethical Problem with Divorce

An attorney is sworn by law and a code of ethics to argue "zealously" for her client's interests.  This is how it should be, since the fight is only fair if everyone has a strong player on the team, who knows the rules, and who can be objective.  This is the point in the game when you have to remember that a lawsuit is not, ultimately, about what's 'fair' (that's what negotiation and mediation are for), but what's 'legal.'  Normally, in a lawsuit, every 'party in interest' has to be notified that the lawsuit is taking place, who's claiming what, of their right to have an attorney, and their right to defend their interests.

The problem with divorce is that the fight is over a contract two people entered into, often without considering the terms of the contract. But there are often new interested parties—the children—:

• Who need not be told this is taking place;
• Who are probably incapable of understanding
  • the contract,
  • it's terms, and
  • the impact on them (short and long-term);
  • and the basis of the breach.
• And they don't get a lawyer.  (They may get a guardian ad litem, but the obligations of a guardian ad litem are nowhere near the same as those of an attorney.)

So, the parties least capable of picking up the pieces and moving on when the dust has settled are in the middle of a battle in which they have little or no say.  The unfortunate result is that the overzealous attorneys for both parents, in striving to fulfil their legal and ethical duties to their clients, use the children as pawns in that fight, or trample over them rough-shod, in the scramble to "take him for all he's got" or "make sure she doesn't clean him out."

Yes, I know, there are divorce lawyers all around the world trying to change this, and some are making progress.  You can condemn me for perpetuating a negative stereotype, but you must acknowledge that it is a stereotype with a basis in extensive historical fact.

How can I help?

As mentioned above, civil marriage is a contract.  Nobody thinks about that when things are going well, and you're all playing by the rules you're making up as you go along.  But when things go wrong, you are bound by the rules that were in place when you went into the game.  The default rules are defined in the statutes.  At the very least, you should understand what those rules will be before you sign the contract.  I can help with that.

You CAN change the rules.  You can define the rules of your marriage going in.  Through pre-nuptial agreements, you can agree before you're ever married what would happen if you should divorce.  (There are limitations on terms that affect your children, if you have any, of course.)  If you anticipate divorce, and you're still on good terms, you can negotiate a settlement agreement, as you can with any breach of contract.  However, in the case of a settlement agreement for separation, you must choose your help carefully, to avoid the ethical problem mentioned above.

Isn't a pre-nup admitting it's not going to work, and planning your divorce?

A premarital agreement is not planning a divorce; it's planning for the possibility of a divorce. It is a statistical fact that many marriages consummated today will end in divorce. Knowing how that would end up won't make you love each other less; why should it make it "easier" to get divorced?  In fact, you can craft a premarital agreement that actually provides incentives for staying married. Some states have statutes that take the reasons for the divorce into account; adultery (an affair) is just one example.  Your premarital agreement can specify that property will be divided one way if you both "just decide to go your own way," and another way if one of you is unfaithful.  A number of other "classic cases" can cause complex and bitter divorce proceedings under the statute, but can be dealt with in advance:  putting each other through school, forsaking a profession to raise children, taking an extended leave to care for a sick parent, etc.  And even if you decide not to include such considerations in a premarital agreement, you may just find that the dialog you engage in while considering such far-ranging possibilities actually gives you better insight into the person you're planning to marry, her/his life priorities and goals, etc.

Disclaimer:  I am not, do not profess to be, and certainly do not want to be a professional marriage counselor!

If you don't want to be married... (or Can't)

Hopefully, I have not scared anyone away from getting married!

Couples choose not to marry for all sorts of reasons, just as they have many reasons for choosing to marry.  Perhaps they're bitter about prior failed marriages, and have lost faith.  Perhaps one of them is still married, but estranged or separated.  Perhaps they cannot legally marry, or their marriage from another state or country is not recognized by the state of North Carolina (e.g., same-sex marriages).  In these and similar situations, they cannot take advantage of the ready-made contract of marriage.  They can, however, take advantage of traditional contract law to craft their own terms for their relationship:  Who owns how much of the property?  What happens if they have children?  What happens if one dies?  What happens if both die? The answers to these questions can make for one less point of concern or insecurity in a relationship, and are a fundamental part of estate planning for unmarried couples.