Marriage on Our Own Terms
Posted: 10 Sep 2015 Last revised: 25 Apr 2017
Date Written: March 1, 2016
States’ right to regulate marriage is generally accepted without question. While many have challenged particular restrictions related to who may legally marry, few have questioned whether the state should have any role in regulating the marital relationship. But state regulation of marriage is not limited to a gatekeeping function. Historically, many rights of married couples — particularly married women — were determined by common law or by statute. Yet while the amount and degree of regulation has decreased significantly in the last century, states still play an important role in defining key aspects of the marital relationship.
This article begins a new conversation that considers the future of state marriage regulations, with a focus on laws regulating marital property rights. Despite their potentially life-altering impact, many couples enter into marriage ignorant of the scope, nature, or effect of marital property laws. While states generally allow couples to alter the default rules by entering into a prenuptial (and in some states, postnuptial) agreement, only those who are aware of the state default rules and who have the means to contract around them are able to enter into marriage on their own terms. The article concludes that with respect to property rights, states should continue to provide default rules that govern those rights after marriage, but they should give couples the ability to choose alternate rules that better reflect their intentions without the need to execute a prenuptial agreement. Specifically, states should provide couples with information and options when they apply for a marriage license that allow them to make an informed choice about how property owned by each party before the marriage and property acquired during the marriage will be treated under state law.
Suggested Citation: Suggested Citation