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  • Writer's pictureDeian McBryde

Marriage is a promise, and a contract. Divorce is how that contract often ends.

Updated: Feb 20, 2020

People get married with the best of intentions. Many of a couple's hopes and dreams get poured into this primary relationship, and no one, well, not any of my clients anyway, starts a marriage by picturing a divorce. In a way, that's too bad, not only because 50% of marriages (gay, straight, and otherwise) end by divorce, but because marriage is a contract and most of us would not dream of signing a contract with no provision for how to end it.


Marriage is a legal agreement between two competent people to be married. That might be defined differently in your home state or country, but you probably get the idea. You promise to be there to support and take care of each other, and you get some important rights like inheritance or property protections. Check your local laws or ask an attorney, but you'll find that your marriage vows are close, but not exactly the same as the terms of a legal marriage. I don't think you'll find the word "cherish" in most statutes, for example. That's important because whether you got married in a church or at the courthouse, your vows are unique, but your marriage contract is basically the same as everyone else's in your home jurisdiction.


Not to trivialize it, but most of us sign a contract expecting to enjoy the benefits but never having to claim a breach, right? Even a cell phone contract means you get a phone, and that's exciting! But, when things go wrong, you want the least problematic way out that leaves you with some dignity.

In business, two sides negotiate how they'll get OUT of the contract at the same time that they are figuring out how to get IN to make the deal. Generally, the goal of ending a contract is to get back to where you would be if the contract had not happened, or to keep most or all of your gains because you entered the contract and the parties thrived. No one negotiates the end of a contract to lose, but maybe two paries can negotiate a draw.

Marriage is like that except that the government (usually the legislature) has already decided the terms to get IN and the way to get OUT. You get IN by having the legal capacity to make a marriage contract -- you can't be underage or trying to marry your 1st cousin. Then you'll need a license and some kind of ceremony. You get OUT by filing a petition and then going through a dissolution of marriage.


If I sign a two-year lease on an office or an apartment, it's probably good to trust that it's all fine and not spend every day looking at the classifieds trying to find a bigger, better deal. Better to cross that bridge when the end is in sight. But, imagine signing a new contract with no idea whether you'll get your deposit back or wondering what happens if it all goes wrong, and you have to break the lease before the term. Will it cost a lot? Can I do anything about it in advance?

It seems a little cold, but signing a marriage license might be a little like that. You sign up for the long term, and you stop looking for whatever you wanted before you were married but with some idea of what happens if it ends early. Will you get to keep the things you bought together? What if you inherited some money while you were married? Who gets all that stuff?


Just because I know where the fire exits are in my office doesn't mean I'm planning for the building to burn down. It's just good to know. In a marriage, you aren't planning for it to end, but when it does, the more preparation you've done, the less messy the ending has to be. One good option is to talk about an agreement that defines your property and some future interests before you tie the knot, like a prenuptial agreement.

A good marriage is full of all kinds of difficult conversations. Being able to discuss hard topics upfront means you may have just found "the one" who'll be fearless and willing to tackle big problems during your life together. But if the partnership doesn't work out until "death do you part," you should have a simplified and graceful way to end the marriage, an ending that leaves your friendship intact.


I agree. Marriage is more than a contract: love, trust, and mutual interests are all factors. But those are the reasons to get married, not the method by which you get married. And only rarely do those concepts take center stage during a divorce. Your wedding will be special and magical. Invite me; I'll possibly show up! But do yourself and your future spouse a favor and make a "just in case" plan. Sometimes, it's the best way to make sure the love you feel for each other today is there to support you in kindness if the marriage needs to become something else later.


In New Mexico, contact McBryde Law and let's talk about what's possible. You deserve a great life, and that means being able to move on with dignity and grace.

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