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RENT-A-SPOUSE: WILL IT MAKE DIVORCE OBSOLETE?

As I was relaxing on the beach during a recent vacation listening with guilty pleasure to a local Top 40 radio station, Ryan Seacrest and his band of cohorts interrupted the music to discuss the pros and cons of a new model for marriage that had been posited on the Internet and picked up with some seriousness in the mainstream media – a 10 year marriage contract.  Having already concluded that marriage was dead, Emma Johnson, in her blog post on Wealthy Single Mommy, later re-published on Huffingtonpost.com, suggested that rather than perpetuating the failed “til death (or divorce) do us part” model, the institution of marriage may actually be saved by it being based on a fixed-length (10 year), renewable marriage contract.  Working under the premise that humans were by nature serial monogamists and given the high divorce rate, she suggested that this new model would comport with these realities, allowing the marriage to end at the expiration of the contract should the couple decide that the relationship had run its course or renewing the marriage by entering into a new contract for another 10 year term.  It was suggested that this new model would force couples to communicate and that these marriage contracts would not only define the parameters of their personal and financial relationship during the term of the marriage, but would pave the path for a “low-animosity split” by addressing how the money and children would be dealt with should it end, in effect rendering divorce battles obsolete.

After listening to this radio debate and then reading Ms. Johnson’s blog and related posts, my first thought was bemusement. Unfortunately the lawyer in me forced my mind to drift from thoughts of sand and surf to whether this new model for marriage had any legal validity.

I offer no opinion as to the moral or ethical considerations which may be raised by such a “rent-a-spouse” concept of marriage.  While our New Jersey Supreme Court in Rothman viewed marriage as a “shared enterprise, a joint undertaking, that in many ways is akin to a partnership” in assessing each spouse’s role and contribution therein, our law has never reduced the institution of marriage to the level of a business or commercial transaction.  Further, the premise that marriage is dead would come as a surprise to the parties to the Windsor case recently decided by our United States Supreme Court and others fighting for the rights of same sex couples to marry – and who argue that civil unions and domestic partnerships are no substitute for the institution of marriage itself.  Further, the very marriage contracts upon which the “new model” is based would themselves appear to be unlawful and contrary to the public policy of this state – their object being the divorce of married people and the termination of a familial relationship at the end of a fixed term unless the contract was renewed – as evidenced by the decisions of our New Jersey Supreme Court in Staedler v. Staedler and J.B. v. M.B.

Besides their questionable enforceability, the notion that such marriage contracts would eliminate acrimony between the parties and render the current system of divorce obsolete lacks foundation, both practically and legally.  According to this model, such marriage contracts are akin to a Premarital Agreement “but more” – establishing broad goals for the marriage itself. In real terms, most couples entering into their initial marriage contract would just be starting out in life, their careers, etc., and where they may be ten years down the road would, more likely than not, be pure speculation.  Given that New Jersey’s law governing Prenuptial Agreements was recently amended to provide that evaluating such Agreements’ unconscionability would  be assessed as of the date of execution rather than the date of enforcement, the capacity to craft, let alone the willingness to enter into such Agreements is questionable at best.  Further, under New Jersey law, Prenuptial Agreements may not adversely affect the rights of a child to support (N.J.S.A. 37:2-35), nor touch upon the care and custody of children, same being within the inherent parens patriae jurisdiction of the court. Hence, provisions in a marriage contract which sought to address future issues of child custody or child support would likely be deemed unenforceable.  Given this, my experience tells me that disputes over children are often far from “low-animosity.”

Besides concerns over this initial marriage contract, the model presumes that before the end of its term, the couple would be forced to communicate about whether they wished to renew their marriage and negotiate the terms of what the new marriage contract would be.  Far from being a low-animosity situation, it is one that would be ripe for coercion and duress.  One can envision the conversation where the dependent or disadvantaged spouse is told by the other that the marriage would not be renewed and he or she would be cut adrift unless that spouse gave up certain rights or claims.  One can envision the conversation where the spouse who was the primary caretaker of the children tells the other parent that their marriage contract would not be renewed and that he or she would leave with the children unless certain concessions or demands were met. These circumstances are akin to those which the court was confronted with in the case of Pacelli v. Pacelli, 319 N.J. Super 185 (App. Div. 1999) dealing with the enforceability of mid-marriage Agreements.  While stopping short of declaring such mid-marriage Agreements void, per se, the court clearly viewed them with disfavor, entered under circumstances where there would be an overwhelming potential for overreaching if not being inherently coercive.

While interesting fodder for discussion between Top 40 songs, this new model for marriage does not in my view make it down the legal runway.