If you're married, you already have a prenup

Every married couple is bound by a set of terms covering property, debts, support after a divorce, and what happens when one of them dies. Couples who sign a prenup write some of those terms themselves. Everyone else gets the version the state supplies. The marriage license is the page on which you accepted it.

That version isn’t written down in one place. It is spread across your state’s family code, its probate code, the court opinions that interpret both, and a long list of federal statutes. The clerk who issues the license doesn’t hand you any of it.

Some states do take an interest in how you prepare. Minnesota and Texas both reduce the license fee for couples who complete a premarital education course; the Texas course is eight hours long. Neither offers a discount for reading the terms you are about to accept.

Few couples write their own

Written prenups are rarer than their reputation. A 2003 Harvard John M. Olin discussion paper put the share of couples with one at about 5 percent. A Harris Poll conducted for The New Yorker in 2022 found about 15 percent. On either figure, most married people are living under the state’s draft.

That draft has been in effect since the wedding. It applies whether or not either spouse has looked at it, and it applies to every paycheck and every account opened since.

Congress wrote part of it

State law is only one layer. In a 2004 report, the General Accounting Office counted 1,138 provisions of federal statutory law in which marital status is a factor, as of the end of 2003. Most of them will never matter to you. A few involve serious money, and some of those run on a calendar.

The tenth anniversary

The clearest way to see the default at work is to look at what changes at ten years of marriage.

Social Security. A divorced spouse can collect a benefit based on an ex-spouse’s earnings record, but only after a marriage of at least ten years. The ten years are counted to the date the divorce is final. A separation that began earlier doesn’t stop the count. The benefit doesn’t cost the other spouse anything, so on this one point both people in a divorce may want the same thing: a final decree dated after the anniversary.

Military retired pay. A court can divide it after a marriage of any length. The military’s pay office will send the former spouse’s share directly only if the marriage overlapped at least ten years of military service. Short of that, the former spouse has to collect it from the retiree.

Texas maintenance. In Texas, a court generally can’t order post-divorce maintenance unless the marriage lasted at least ten years.

So two couples with identical finances can face different rules because one divorced a month before the anniversary and the other a month after. Nobody sends a notice when the date passes.

The state can rewrite it

A private contract binds only the people who signed it. This one has a third party. The Supreme Court settled that in 1888, in a case with unusual facts.

David Maynard married Lydia in Vermont, and they settled in Ohio with their two children. In 1850 he went west, promising to send for the family, and never did. Under a federal law that gave land to married settlers, he claimed 640 acres of what became Seattle. In December 1852 he persuaded the legislature of the Oregon Territory to pass an act dissolving his marriage. Lydia, still in Ohio, was not told. Three weeks later David remarried.

After he died, Lydia’s children went to court for part of that land. Their argument was that marriage is a contract, and a legislature can’t impair a contract. The Court rejected it. Marriage, it held, is a status that the legislature controls, and a legislature could dissolve one by statute without notice to the wife.

Legislatures no longer grant individual divorces. The principle from Maynard v. Hill still holds. Your marriage has a third party, the state, and the state can change the terms.

What to do with this

Whether you want to keep the default or change parts of it, the first step is the same: find out what it says. An agreement signed before the wedding is a prenup. One signed after is a postnup. Neither is a sensible choice until you know what you would be changing.

Read the default contract, set beside three alternatives, on the contracts page. Then see which property system your state uses on the state pages; the terms depend on where you live, and each state’s page gets more detail as it is checked. If a divorce is under discussion and the marriage is close to ten years, find out which of the anniversary rules apply to you before anyone files.

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