THE MARRIAGE CONTRACT

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

Marriage, in its origins, is a contract of natural law. It is the parent, not the child of civil society.
~Dalyrimple

When you said “I do,” did you have any idea you were entering into a contract under California law? To many the vows are spiritual, emotional, or merely ritualistic. But marriage creates legal rights and obligations. What is the contract you are creating when you tie the knot in California?

First (and probably foremost), each contracts toward the other “obligations of mutual respect, fidelity, and support.” Of course, when a marriage breaks up, “support” is the only certain survivor of these obligations.

Second, each retains the power to enter into transactions with each other and third parties. Along with this power comes an obligation of fidelity in financial matters. Husband and Wife are each entitled to access of financial information in the possession of the other “at all times.” If either wants information about such transactions, the other must provide “true and full information” concerning community property. Finally, each must account to their spouse (and protect their interest in) any benefits or profits for community property transactions that were executed without the other’s consent.

Third, when the marital community is joined, everything new coming into the household is owned equally by the couple (exceptions are gifts, inheritances and income on separate property). One spouse can’t “give away” or sell for less than fair value any community property without the written consent of his or her spouse. You can’t even borrow against community property without such consent.

Each spouse has a duty to support the other. If one of the parties has separate property and the community resources are insufficient to meet the living expenses, the separate property must be used to do so. Of course, the duty to support minor children does not rest on the marriage contract alone, but it is an obligation that frequently arises out of the marriage contract. The father and mother have an equal responsibility to support their child(ren) in the manner suitable to the child(ren)’s circumstances.

Most people don’t think about these obligations as part of a contract between them (which may be a good thing). But when the contract ends in divorce, the terms become all too knowable.



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