The issue of gay marriage has brought the overall concept of marriage into sharp relief. The legal concept of marriage is analyzed along with a proposal to resolve the plague on citizens of divorce and divorce lawyers.
History of Marriage Law: Any rational discussion of divorce and its problems has to begin with a history of the marriage concept. "A page of history is worth a volume of logic." The Roman system eventually influenced English matrimonial law from which much of our law is derived. English marriage law, in turn, came from ancient canon law, which, in large part consisted of the decrees of the various popes. American marriage law has it's origins in these English matrimonial laws which were administered in England by their ecclesiastical courts.
American matrimonial law then codified the English common law by enacting statutes which now control our marriages and our divorces. The 1970's brought no-fault divorces ending those arduous trips to Nevada. Everyone knew (including Jimmy Buffett) it was always the man's fault anyway! Supplementing (or complicating) these statutes are the numerous administrative rules issued by the Department of Justice. My current packet on Child Support Administrative Rules runs thirteen (13) pages with thirty nine (39) subparts written in Sanskrit for your particular reading pleasure.
Nature of Marriage: Marriage is contractual in nature and a valid marriage is a binding contract. Even though many consider the marriage concept as sanctioned by natural or divine law, it is nevertheless a civil contract regulated by civil law whether you are married in a church or by a judge at the courthouse.
Reason for Change: In twenty years of law practice, I have watched as the simple earnest money agreement for the sale of a normal residential home has gone from a one (1) page document to an eight (8) page document. This same geometric expansion is also to be found in the normal, lawyer-drafted divorce package. Thirty years ago it was observed:
"Getting divorced can be a wrenching process, made worse by intrusive, lengthy, expansive and hostile legal proceedings. Lawyers, who profit from the misery of divorcing couples--the more fighting, the more fighting, the more profit--have resisted the fundamental reforms necessary to civilize the process." (Legal Breakdown, Nolo Press, )
Proposal for Change: This proposal has been vetted by real folks over the last ten years of my law practice. Here it is: All marriages should have a defined option/renewal period. For first marriages where children are contemplated, it could be, say, fifteen (15) years. This is twice the 'seven-year itch' period. For second marriages it could be shorter, say five (5) to ten (10) years. At the end of the option/renewal period, all the parties have to do if they want to stay married is exercise the renewal option for whatever period they decide. On the other hand, if at least one of the parties does not want to renew, then the marriage period simply ends. No harm, no bitterness, no failure. The marriage simply expires. Here is the sweet part---
Attorney Fees: When the parties get married, each must post $3,500 into an interest bearing trust account in their name. They may not touch this money unless the option to renew the marriage is not exercised by either party. This fund is then used for each parties' attorney for property division or support issues if needed. The catch is that this is a flat fee. The attorney may not charge more. If the parties stay married then this money is returned to their estate with interest when each dies.
Model for this Proposal: Several years ago I spent a significant period in Sweden living with the editor of a major Stockholm newspaper. He had married at age twenty (20) with his blond wife bearing one daughter. Divorced at age thirty five (35) he remarried and again had one child with his second comely, blond wife. Again divorced at age fifty (50) he remarried for a third time to a beautiful forty (40) year-old blond Swedish woman whose biological clock was nearing the midnight hour, so there was a third child. Then they divorced.
What was remarkable about this extended family was the absence of rancor or bitterness. To the contrary, his current digs which I shared was the gathering place for all three women and their children. They all got along famously. When I inquired, they explained that each marriage seemed to have a natural life span and they all enjoyed each other in a healthy way. The children were equally sophisticated about the transitions and nurtured each other, showering the new baby with extraordinary attention.
All things have a natural life span, including marriage. This proposal seeks to do away with the sense of failure by providing hope to those who yearn for successful marriages, but realize there is a natural marriage gestation period for all normal human beings based on their own particular realities. Here's to those good marriages all around.
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