THE MARRIAGE CONTRACT (DEFAULT FORM)
The one you already have.

From "The Marriage Contract" (sample draft). This is a starting point for discussion, not a finished legal document and not legal advice. Each spouse needs an independent lawyer licensed in their state. [Bracketed] numbers are placeholders for you to decide. Words in [[double brackets]] hand a decision to a judge or arbitrator: they are the "luck of the draw" terms.


THE ARTICLES

Article 1. Parties and formation.

This Contract is made among the two Spouses and the State. It is formed upon solemnization of a marriage under a valid license or, in states that permit it, upon the Spouses' present agreement to be married followed by cohabitation and public reputation as married. The Spouses acknowledge that they have not read this Contract, that no copy was provided, and that neither fact affects its validity.

In English: You're in. It doesn't matter that nobody showed you the terms. In a few states it doesn't even matter that you skipped the license.

Article 2. Governing law.

This Contract is governed by the law of the state in which either Spouse is domiciled at the time of dissolution or death, as that law then exists. The law of the place of celebration governs only the validity of the marriage. The Spouses may change the governing law by changing domicile, and either Spouse may do so unilaterally.

In English: The rules are whatever they are in the state where you end up, on the day it ends. Either of you can change them by moving.

Article 3. Marital property.

[Option A: equitable distribution, 41 states and D.C.] All property acquired by either Spouse from the date of marriage until the cutoff date fixed by state law (separation, filing, or decree) is marital property regardless of title. Upon dissolution the court shall divide marital property in such proportions as it deems [[equitable]], without regard to marital misconduct in most states, after considering the length of the marriage, the age, health, income, and employability of each Spouse, each Spouse's contributions including homemaking, and [[such other factors as the court deems relevant]].

[Option B: community property, 9 states] All property acquired by the labor of either Spouse during the marriage is community property, owned in equal undivided shares from the moment of acquisition. Upon dissolution the community shall be divided equally [California, Louisiana, New Mexico] or in a manner the court deems [[just and right]] [Texas, and similarly elsewhere].

[Option C: all-property states] As Option A, except that the court may also divide property described in Article 4 where it deems that [[equitable]].

In English: Everything either of you earns while married belongs to both of you, no matter whose name is on it. In nine states that means half each. Everywhere else it means whatever a judge thinks is fair, and in a few states the judge can dip into the premarital and inherited stuff too.

Article 4. Separate property.

Property owned by a Spouse before marriage, or acquired during marriage by gift, bequest, or descent, is that Spouse's separate property, together with [in most states] its passive appreciation. Separate property becomes marital, in whole or in part, to the extent it is (a) commingled with marital property so that it cannot be traced; (b) retitled in joint names, which is presumed a gift to the marriage; or (c) increased in value through marital funds or the efforts of either Spouse. [Some states] All appreciation during the marriage is marital. The Spouse claiming separate property bears the burden of tracing it by [[clear and convincing]] or [[preponderant]] evidence, as the state provides.

In English: What you brought in stays yours, along with gifts and inheritances, as long as you keep it completely apart and can prove it with paperwork years later. If you mix it, retitle it, or improve it with marital money, some or all of it becomes "ours."

Article 5. Debts.

Debts incurred by either Spouse during the marriage are presumed marital and shall be allocated on the principles of Article 3. Allocation between the Spouses does not bind any creditor, and a Spouse remains liable on any obligation he or she signed regardless of the decree. Under the doctrine of necessaries or a family expense statute, a Spouse may be liable to third parties for medical care and other necessities furnished to the other Spouse. [Community property states] Community property is generally liable for debts incurred by either Spouse during the marriage.

In English: Debts get split like assets. The bank isn't bound by the split. If the decree says your ex pays the joint card and your ex doesn't, the bank comes after you. You may also owe your spouse's hospital bills.

Article 6. Support during the marriage.

Each Spouse owes the other a duty of support according to his or her means. No court will enforce this duty or inquire into the adequacy of support while the Spouses live together. Upon separation, either Spouse may seek temporary support in an amount the court deems [[reasonable]], or as fixed by guideline where one exists.

In English: You have to support each other, but that can't be enforced until somebody moves out.

Article 7. Support after dissolution.

[Option A: discretion, most states] The court [[may]] award maintenance to either Spouse in such amount and for such duration as it deems [[just]], considering the length of the marriage, the standard of living during it, each Spouse's resources, earning capacity, age, and health, contributions to the other's career, and [[any other factor the court deems relevant]].

[Option B: formula] Maintenance shall be calculated by statutory formula based on the Spouses' incomes, for a duration determined by the length of the marriage, from which the court may deviate where the result would be [[unjust or inappropriate]].

[Option C: capped] Maintenance is available only after a marriage of stated minimum length, only to a Spouse unable to meet [[minimum reasonable needs]], and may not exceed a stated dollar amount, share of income, or duration.

[Fault rider, a minority of states] A Spouse who committed adultery may be barred from maintenance, or the court may consider marital misconduct in fixing the amount.

In all cases maintenance terminates on the recipient's remarriage or either party's death, may terminate or be reduced upon the recipient's cohabitation, and may be modified upon a [[substantial change in circumstances]] unless the decree provides otherwise.

In English: After the divorce, the person with more may have to pay the person with less. How much, and for how long? In most states nobody can tell you in advance. A few states use a formula, and a few are stingy on purpose. In a handful, cheating can cost you your alimony.

Article 8. Children.

The Spouses' obligations to their children are not governed by this Contract and may not be varied by agreement. Child support shall be determined under state guidelines, belongs to the child, and may not be waived by either parent. Legal and physical custody shall be allocated according to [[the best interests of the child]] as determined at the time of decision. Any agreement of the Spouses on these subjects is advisory.

In English: The kids aren't part of the deal. Support comes from a formula, custody is up to the judge, and whatever you agreed to in advance is only a suggestion.

Article 9. Death.

[Option A: most states] If a Spouse dies intestate, the survivor takes a statutory share of the estate, ranging from one-third to the whole depending on the state and on who else survives. If a Spouse dies testate, the survivor may elect to take, in lieu of the will, a statutory share, typically one-third of the estate or a share that increases with the length of the marriage up to one-half. The survivor may also claim homestead, exempt property, and a family allowance. These rights may be waived only by a signed writing after [[fair]] disclosure.

[Option B: community property states] The survivor owns one-half of the community property outright. The decedent may dispose by will only of his or her half and of separate property.

[Option C: Georgia] The survivor has no elective share and may petition for a year's support.

In English: With no will, your spouse gets a large share of everything. If your will cuts your spouse out, your spouse can override it and take a guaranteed minimum. Georgia is the exception.

Article 10. Federal riders.

(a) Tax. Spouses who file a joint return are jointly and severally liable for the entire tax, subject to limited relief for an innocent spouse. Transfers between Spouses, or incident to divorce, are not taxable events. Maintenance under instruments executed after 2018 is neither deductible by the payer nor income to the recipient.

(b) Retirement plans. Each Spouse is entitled to a survivor annuity from the other's pension and is the default beneficiary of the other's 401(k). These rights may be waived only by a spouse, in writing, on the plan's form, with a notary or plan representative as witness. A premarital agreement does not satisfy this requirement. A plan may be divided on divorce only by a qualified domestic relations order.

(c) Beneficiary designations. The plan administrator or insurer shall pay the beneficiary named on its form, notwithstanding any will, divorce decree, or provision of this Contract. State laws that revoke a former spouse's designation on divorce do not apply to plans governed by federal law.

(d) Social Security. After a marriage of ten years, a divorced Spouse may claim benefits on the other's earnings record.

(e) Military and federal service. Retired pay is divisible as property. Direct payment to a former Spouse requires ten years of marriage overlapping ten years of service.

(f) Immigration. A Spouse who sponsors the other for permanent residence promises the United States to support the immigrant at 125 percent of the poverty line. The promise survives divorce and cannot be waived by agreement between the Spouses.

(g) Bankruptcy. Support obligations are not dischargeable. Property-division obligations to a Spouse or former Spouse are not dischargeable in a Chapter 7 liquidation.

In English: The federal government added terms that neither you nor your state can remove. The ones that catch people out most often are the joint tax return, the old 401(k) beneficiary form, and the support promise you made to Washington if you sponsored your spouse for a green card.

Article 11. Disputes.

All disputes under this Contract shall be resolved in the family court of the governing state, by a judge assigned without the Spouses' participation, sitting without a jury in nearly all states. The court exercises [[broad discretion]], and its determinations will be reversed only for [[abuse of discretion]]. Most disputes will be resolved by settlement negotiated in light of the [[predicted]] exercise of that discretion. Each Spouse shall bear his or her own fees, except that the court may shift fees as it deems [[appropriate]] in light of the Spouses' relative resources or conduct. The Spouses may agree to mediate or, in many states, to arbitrate financial disputes.

In English: There's one judge and no jury, and the judge has so much leeway that appeals almost never work. Most people settle, which means they end up bargaining over a guess about what that judge would do. Each of you pays your own lawyer unless the judge decides otherwise.

Article 12. Amendment by the Spouses.

The Spouses may vary Articles 3, 4, 5, 7, and 9, and may designate governing law under Article 2, by a written agreement signed by both, before marriage or during it. To be enforced the agreement must be voluntary, must follow [[fair and reasonable]] disclosure of each Spouse's finances or a knowing waiver of it, and must not be [[unconscionable]], tested [most states] at signing or [some states] at enforcement. Agreements made during marriage receive closer scrutiny. Articles 6, 8, 10, 11, 13, and 14 may not be varied.

In English: You can rewrite the money terms, before the wedding or after it, if you both sign, both come clean about your finances, and nobody was pressured. You can't rewrite the rules about the kids, the feds, the judge, or how you get out.

Article 13. Amendment by the State.

The State may amend any Article at any time by legislation or judicial decision. Unless the State provides otherwise, amendments apply to marriages then existing and to dissolutions not yet final.

In English: The legislature can change your deal whenever it wants, and it doesn't have to ask you.

Article 14. Termination.

This Contract terminates upon the death of a Spouse or a decree of dissolution or annulment. It does not terminate by agreement of the Spouses, by separation of any length, or by either Spouse's breach of any promise made at the wedding. In all states either Spouse may obtain a decree without proving fault, subject to any waiting or separation period the State requires.

In English: The only ways out are a death or a judge's signature. Either of you can get that signature without proving the other did anything wrong. Breaking your vows isn't a breach of this contract.