We need a contract for co-parenting, not just marriage

Readers of  The New I Do know that we present parenting marriages as a model and parenting prenups as a way to really plan to become parents.
Here’s a wonderful article by philosophy professor Laurie Shrage that ran in Aeon, which we are reprinting here by permission.

When I was in graduate school in the United States in the early 1980s, a member of our women’s support group informed us that she was pregnant. Although she was single and not in a serious relationship, she told us she intended to have the baby and raise it herself. She decided not to tell the genetic father, as she feared that he would pressure her to get an abortion, or disappear and then later try to enter the child’s life. She preferred to parent alone.

My mother was in a similar position, even when she was married to my father. In the US at the time, it was common for fathers not to be involved in raising the children. What we would now call a ‘traditional marriage’ never really spelled out any principles for shared parenting, except to assign all basic childcare to wives. A father might be called upon occasionally to back up a mother’s disciplinary rules, but I felt somewhat lucky that my mine was never enlisted for this role. When my parents separated, there was no question about who would get the kids: the wife, my mother. Once my parents divorced, my father was around even less, and never got to know my children (my eldest was 12 years old when he died).

These scenarios – being a single parent by choice, and raising children in a marriage and after a break-up – point to the fact that the institution of marriage often fails to facilitate the complex and shifting nature of parenthood. The modern family is changing, and an increasing number of people are choosing to have children outside marriage in the first place. In 1970, 11 per cent of all births in the US were extramarital; by 2014, it had climbed to around 40 per cent. In countries including Norway, Sweden, France, Mexico and Iceland, more than half of all children are born outside of marriage.

This trend troubles some observers, who think that marriage is necessary for the stability of the family. But people become parents under many different circumstances, and often these circumstances aren’t conducive to marriage anyway. Is there an alternative that adds a degree of financial and emotional security to the lives of parents and children?

Yes: akin to a public marriage contract, we need an official ‘co-parenting agreement’ and associated civil status, which not only enshrines the rights and responsibilities of each parent in respect of their children, but also sets out the principles by which they relate to one another and make decisions.

Although children benefit greatly from having the ongoing support of several adults as they grow up, they don’t necessarily need this nurturing from people who commit to marriage. Their parents simply need to cooperate effectively, to respect the relationship the other has with the children, and to contribute in comparable ways to caregiving and family finances. In the United Kingdom, parents who are unmarried, separated, remarried or step-parents can already enter into a ‘parental responsibility agreement’ that aims to establish the terms of shared custody of the children. This includes obligations to keep co-parents informed about a child’s basic wellbeing, and to assist with providing housing, schooling, medical care and other costs.

However, I think that we need to take the notion of official co-parenting a step further – to include parents who might never intend to marry or live together, or who don’t wish to enter into an emotionally intimate relationship. In the US, organisations such as Family By Design and Modamily have sprung up to help single adults find a suitable co-parent for forming a family ‘minus the couple’, as a New York Times article put it. But without the state’s legal recognition, co-parents must draw up their own agreements. Such privately negotiated contracts could fail to protect the rights of weaker or vulnerable parties, or might reflect the quality of legal advice one can afford.

Of course, like marriage, entering and continuing a public, formal co-parenting agreement should be voluntary; parents should always be free to enter into private or informal arrangements, if they wish to do so. But without an institutionalised public option, we expose families to the risk of nightmarish conflict, especially when relationships break down.

When people become parents, they might not be able to anticipate all the ways in which their interests could be interfered with or undermined. Particularly after a break-up, parents often use tactics that they might admit are unfair, and would be incensed if used against them. But when access to their kids and involvement in their lives is at stake, moral consideration for the other parent is not a priority, even for otherwise decent people. Among my friends, and friends of friends, I have seen one parent use a partner’s lack of US citizenship as a bargaining chip to gain access to the children. Another took advantage of the circumstance that her same-gender co-parent had not obtained legal parent status. Yet another elected to move residence far away from the other parent, which made shared arrangements impractical. Many of us know similar stories.

Because marriage generally does not cover the terms of shared childrearing, public co-parenting contracts would offer a social insurance scheme for both ‘traditional’ and non-traditional families. An official contract would help to safeguard parents’ basic entitlements, such as the right to be involved in the lives of one’s children and to appropriate forms of child support from each co-parent. If and when cooperation among the co-parents breaks down, the existence of an agreement can guide courts or mediators in negotiating new agreements for shared parental responsibility.

The process of formalising one’s status as a parent would also encourage people to think through and communicate their expectations right from the start. When we cross the threshold to parenthood, surely it’s sensible for society to nudge parents to reflect on and discuss who will make career sacrifices to be at home with the children, how the children will divide their time if the parents have separate households, and how important decisions will be made that affect a child’s future.

Of course, it can be hard to know precisely what to expect in advance of something as momentous as having a child, and the contract doesn’t have to lay it all down in detail. But the point is that future decisions would take place in the context of a formal commitment and a public declaration about the primacy of the co-parenting relationship in one’s life. Such an agreement would also provide an incentive for parents to work things out to their mutual benefit – in part because they know that ending the arrangement has tangible consequences.

In short, one’s rights as a parent, and the relationship with one’s children, shouldn’t be contingent on the ups and downs of one’s love life. Co-parenting as friends, or at least as collaborators, is good for children, adults, and society. If a civil institution of co-parenting had been available, both my mother and my friend from graduate school might not have had to go it alone.

This article was originally published at Aeon and has been republished under Creative Commons.

Did Angelina Jolie and Brad Pitt need a parenting prenup?

No matter how you feel about the Angelina Jolie-Brad Pitt divorce — including the desire to not have to think about it, celebrity divorces or divorce in general — there is one thing all parents should pay attention to.

The reason they split, we’re lead to believe, is because they couldn’t agree on how to parent their six children: Jolie wants to homeschool their children so they can become “worldly” as the family travels throughout the world and among their homes in France, New Orleans, Los Angeles and New York City, and Pitt supposedly wanted them to be enrolled in school. parents divorce

That’s just one small part of being a parent — school is important, yes, but there are a lot of other factors that go into how parents will have and raise children, from how many they’ll have to how far apart they’ll be born or adopted to religious instruction to discipline to who’ll care for them to activities and sports. In other words, there are lots of things to think about when a couple decides to become parents — and a similar process must happen when a man or woman considers whether to become a single parent. But, here’s one thing that doesn’t happen when one decides to become a single parent — there’s no one else’s opinions, feelings, thoughts, desires to take into consideration. But if you’re raising children as co-parents, there are a lot of things that need to be decided together.

Except, are parents fully deciding together how they will raise their children?

What is a parent’s responsibility?

OK, most of us are not living the life of Angelina Jolie and Brad Pitt. But, any couple deciding to have children together or even those couples who didn’t decide but suddenly find themselves pregnant, have a certain responsibility to figure out what they’re doing and why  … ideally before their child is born.

Of course, things change once your kids are born and then start to grow. Learning challenges may suddenly appear or an illness. So, having a parental plan of action isn’t set in stone; you have to be flexible. But a parenting plan is a baseline.

Apparently, it wasn’t just how the kids were going to be schooled that helped lead to the Jolie-Pitt split; it also was how they were being disciplined. Both Jolie and Pitt admitted he was the stricter of the twobut perhaps just with their boys. “I am with the boys,” Pitt once said. “Girls do no wrong so I don’t have to be.” As a former girl myself, I would beg to differ.  Girls do plenty of wrong and I’m actually surprised by his rather sexist view.

Nevertheless, discipline and schooling are two huge issues when it comes to raising children and if couples become parents without having some sort of a meeting of minds, they are setting themselves up for trouble — and perhaps divorce. Divorce per se isn’t bad for children, but if the parents are still fighting, well, we know from studies that conflict is what’s harmful to kids. And because Jolie is fighting for full physical custody of their children and Pitt has reluctantly agreed to that for now, continued conflict for them is not out of the question. Guess who will suffer?

Given all that, it’s clear the old way of becoming a parent is no longer working for us or our kids. There’s been some talk about a “new ethic of responsible parenthood,” which sounds great on the surface although I have some problems with what’s suggested on how to create that.

Yes, there needs to be policies that give parents the support they need, but the onus is on every person who decides to raise a child to plan for parenthood, especially if they’re co-parenting.

Are prenups for kids?

Jolie and Pitt allegedly have an “iron-clad” prenup for their substantial wealth. How ironic, then, that they don’t create a “prenup” for what seems to be even more precious — the well-being of their children. Those six kids have a right and a need to have access to both parents (assuming that doesn’t put them into a harmful situation) equally. At the same time, each parent should have a right to be an active partner in deciding what’s best for his or her children. Neither is likely to happen now.

That’s why divorce can be so painful.

Many of today’s marriages are based on having children — so-called high-investment parenting (HIP) marriages. But that’s not enough. In The New I Do, we address what a prenup for a parenting marriage may look like; in fact, we call it the true definition of planned parenthood. A prenup for kids may seem silly — honestly, who has one? — and perhaps even unnecessary. Except, there are no guarantees in life, love or marriage. If your kids matter to you — and I’d say most parents would say they do — and you want to make sure you have a say in how they’ll be raised, whether you’re cohabiting, married or in a parenting partnership, please don’t wait until things fall apart (and none of us think it will) and you and your co-parent are unhappy or angry or both or worse; make a plan. Now. Your children will thank you for it one day. Or, just as good, perhaps they’ll never even have to know.

Want to learn how to have a parenting plan? Read The New I Do: Reshaping Marriage for Skeptics, Realists and Rebels (Seal Press). Order the book on Amazon, follow us on Twitter and like us on Facebook.

If you have love, do you need commitment, too?

Recently there were two stories that addressed the “happily-ever-after” version of marriage many of us expect, or at least want to believe.

Actress Drew Barrymore and her third husband, art consultant Will Kopelman, are divorcing after two children and three years of marriage. At the same time, a Maine couple were being honored for their 77-year marriage and, as nursing home residents, for “their achievements and contributions to the community” until the wife passed away last month.

According to the vice president and director of communications for the Maine Health Care Association: “It was pretty obvious that in everything they were a team. Who’s married that long now? I mean, really. That was really impressive.”

Dos commitment matter?It’s only later in the article that we learn why they might have lasted that long — the wife’s “tolerance for the things (her husband) did” was the secret to their long marriage, which was not without its struggles: “He was very headstrong. If there was something he wanted to do, he was going to do it.”

Hmm, should we actually celebrate that?

When people are asked why they want to get married, an overwhelming number (88 percent) say love is a “very important” reason to get married. A close second is making a lifelong commitment (81 percent).

Yet, we are often fuzzy on defining commitment — a number of people say commitment is very important in their marriage yet if their spouse has an affair, well, bye-bye commitment and hello divorce. Clearly, commitment will only go so far.

Still, society tends to emphasize how important commitment is in marriage and if someone divorces, especially for seemingly “trivial” issues, his or her character often comes into doubt. Thus, commitment takes on a moral value: the more committed you are, the more you love your spouse.

But is that true?

Love should be enough

Anca Gheaus, a philosophy professor whose work I’ve come to admire, questions those assumptions. In fact, she questions if love shouldn’t matter more than commitment in a marriage.

There are two types of commitment, she notes — the promises and the behaviors, and attitudinal. Marriage has both; it’s a contract, with spouses-to-be promising each other certain things over the course of the marriage as well as the daily negotiations that build trust, but it also indicates that spouses think about “each other and their relationship as central to their idea of a good life, and, in least in love-based marriages, to their identity.”

But, she questions, why is it important for people to commit to other people and a relationship just because it’s part of how they see themselves and their life?

“It may be true that most of the things that give meaning to people’s lives are those to which they are usually committed. But commitment does not seem to be necessary for meaning; being engaged with people and activities about which one cares is enough.”

Is commitment, then, really important in a marriage? True, commitment may keep spouses from splitting if more tempting partners or activities that would take time and energy away from the relationship suddenly appear. But, she notes, a more likely reason commitment matters is because it’s hard to live with someone else day in and day out, and commitment keeps a couple going and working toward a life plan together even when things are tough and they may not want to.

Does that mean we really need commitment? With all due respect to the Beatles, wouldn’t all we need is love? If someone loved us, wouldn’t he or she be kind to us and do nice things for us and hang around because of that love? And wouldn’t we do the same?

“As long as love, understood minimally as the inclination to seek another’s companionship and advance her well-being, exists, commitment is not necessary. One need not be committed to one’s beloved in order to suspend any cost-benefit analysis of the relationship … the appearance of more desirable partners will not be a reason to leave the marriage if one loves one’s spouse. … A world where the goods of marriage were achieved without commitment, out of love alone, would therefore be a better world; marital commitment seems to be a second-best solution to securing the goods of marriage.”

Of course, love is fragile and can disappear, too; that’s in part why spouses commit to each other — to kind of “lock in” some future love. But, is that what we really want — someone to be with us out of commitment than out of a deliberate decision to be with us because they love us? Does it really build character to keep staying with someone we no longer love? Love may be a better way to be with someone because “love is a direct reaction to the reality of the beloved” and is in the moment and has nothing to do with the promise you made three, 10 or 77 years ago to stick together “until death.”

Again, this speaks to the beauty of a renewable marital contract, in which spouses would have to react to “the reality of the beloved” every so often and decide — are we still in because we want to be here or not? Are we loving each other in the way we want to be loved?

Why stay together?

Barrymore and Kopelman evidently are no longer in love. Would commitment be reason enough for them to stay together? “Well, they have young kids,” you might be thinking, “and they should stick it out for them.” But, does their romantic and sexual relationship have anything at all to do with their ability to parent their children? No. If anything we’ve seen how love and sex — or the lack thereof — make spouses miserable.

If commitment matters at all, it should be the commitment to the children, not necessarily to each other. So they could transform their marriage into a parenting marriage until their daughters Olive, 3, and Frankie, 23 months, become 18 since they’ve acknowledged that the girls will bind them together forever. And that is exactly what binds a couple — kids, more than a desire to “lock in” a future together and much more than love.

Does their decision to split make them any better or worse than the Maine couple who stayed together for 77 years — seemingly at the expense of the wife’s self-esteem and perhaps happiness? Yet, that marriage is being celebrated for longevity, whether love was still present or not, while Barrymore is seen as a failure because this is her third marriage.

Demanding commitment in a marriage is basically saying we know our partner may stop loving us at some point but we still want him or her to hang around forever. Or, we may stop loving our partner — now what?

Want to learn how to create a marriage based on your values and goals? Order The New I Do: Reshaping Marriage for Skeptics, Realists and Rebels on Amazon, and  follow TNID on Twitter and Facebook.

You don’t have to have a ‘gray divorce’

Nothing will make you think more about what marriage is about than a divorce. But there’s divorce and then there’s divorce. When Vicki divorced in her 20s and they had nothing — no property, no savings, no kids — it was emotionally challenging, true, but that’s about it. If someone presented her with a way to make the marriage work, she probably would have said, Why? We made a mistake; it’s over!

But when she divorced at midlife with stuff (a house, a car, a dog and, most important, young kids) it was much more complicated. While many people argue about the stuff and money, the bigger issue is the kids: How will we raise them until they can be self-sufficient? renegotiate marital contract

Now a friend is in the midst of a divorce and her kids, at 21 and 25, are no longer “kids;” they’re self-sufficient adults. What does divorce mean at this point?

Are there alternatives that might be available for midlife couples who are struggling?

Yes.

While divorce is on the decline among younger couples, the so-called gray divorce — among those 50 and older — is growing. While most divorces are initiated by women, it hurts women more than the men — 27 percent of gray divorced women live in poverty compared with 11 percent of gray divorced men, according to a recent Bowling Green State University study.

While boomer women were renegades and feminists, and many of us had full-time careers while raising kids, we are still paid less than men are and many of us still resorted to traditional male breadwinner-female housekeeping roles when we married, which inevitably hurt us in the event of a divorce (a model that, despite all our progress, still seems to be the default for Gen-Yers and millennials). Plus, we live longer than men.

Knowing that, is there something else we could be doing?

In some instances, yes. Even if you didn’t create a contract at the onset of your marriage, you can certainly create one after the fact.

Vicki’s second marriage fell apart after the discovery of a long-term affair as well as other issues. Her initial reaction was to save the marriage because her kids were young, 9 and 12, and she was scared. She’d only worked part time since they were born, and they weren’t a wealthy family to begin with.

They could have transformed their marriage into a parenting marriage, giving their kids the consistency and stability they needed while separating the sexual/romantic aspect of their relationship from their parenting relationship, which is one of the models in The New I Do. Would that have worked? In the aftermath of a long-term affair, Vicki didn’t know. Would she have considered it if it had been presented to her by a marriage counselor? Absolutely.

Sadly, you are not going to hear about parenting marriages from marriage counselors, except from people like Susan, because it’s not in their frame of reference. Same with renegotiating the marital contract. Which is why Susan and Vicki have been presenting before local therapists, helping them help their clients.

A blog post from more than a year ago on this website has hundreds of comments from people in a sexless marriage (by their definition) exploring the many ways they have tried to cope — suffer, divorce or cheat. The option of opening up their marriage will never come up in a therapy session because traditionally, therapists don’t think that way. What we need is therapists who are not only able to consider suggesting an open marriage, but also knowledgeable enough to offer support and information to help those who may see it as an option.

But, let’s say there hasn’t been an affair or any sort of major dysfunction. Let’s consider middle-aged empty-nesters, suddenly staring at each across the breakfast table without the distraction of children for the first time in decades. Many couples might discover they have little in common with their spouse anymore, and any conversation that doesn’t involve the kids or household issues feels strained. This is especially true when husbands retire and they’re around 24/7. Which is why many older couples are willing to call it quits and move on.

Given the economic hit they’ll take, they could find other ways to be connected to each other while also creating space that honors their individual needs and “me” time. They could consider living apart together, again, another model in The New I Do.

None of this is to say we’re for or against divorce or marital longevity; most of us fall in and out of love with several people before we find someone we actually might want to be in love with for the rest of our life — if we even want that — and many people are much happier after divorcing.

But we are for letting people know they have options. Your marriage is yours to create and re-create. Go for it!

Want to re-create your marriage? Learn how by ordering The New I Do on Amazon, and, while you’re at it, follow TNID on Twitter and Facebook.

Yes, you can write your own marital contract

The idea of a marital contract sounds new, but it actually isn’t.

The debut issue of Ms. magazine, in 1971, which was an insert in New York magazine, included an article on “How to Write Your Own Marriage Contract” by Susan Edmiston, who interviews two couples who created their own marriage contracts.

Why? Despite the cries of today’s men’s rights movement, marriage was not so great for women in the 1960s:

Margaret Sanger and second husband J. Noah H. Slee in 1927. The couple had a marriage contract in which they agreed to live apart.

Margaret Sanger and second husband J. Noah H. Slee had a marriage contract in which they agreed to live apart.

  • We could be fired if we got pregnant (until 1978)
  • Sexually harassed at work? Too bad (until 1977)
  • We couldn’t get our own credit card (until 1972)
  • We couldn’t refuse to have sex with our husband (until the mid-’70s in some states, in all 50 states in 1993)
  • We couldn’t get a divorce without having to prove fault (until 1969)

 

Not surprisingly, it was the wives who insisted on the contracts to deal with what clearly were marital inequities.

One couple, the Shulmans, created a marital contract after they had kids, when their previously egalitarian partnership fell into old gendered patterns, which despite how far we’ve come, baby, since then, still occurs today. (It also was a way to salvage a marriage doomed for divorce, and was roundly mocked by Norman Mailer, Joan Didion and Russell Baker.)

The other couple started off with a contract, one that dealt with chores, cooking and finances. When their daughter was born, they renegotiated their contract again to include childcare, which the wife, psychologist Barbara Koltuv, admits was a struggle — one that I’ll bet most women can relate to:

The hardest thing was being willing to give up control. What we call responsibility is often control, power, being the boss. When I was really able to recognize that my husband’s relationship with Hannah is his and mine is mine, everything was all right. He’s going to do it differently but he’s going to do it all right. We’ve been teaching her all along that different people are different.”

But marriage contracts between spouses date back farther than the ’60s and ’70s.

Social critic Mary Wollstonecraft was philosophically against marriage but married William Godwin in 1796 after they discovered she was pregnant (she died in childbirth six months later), yet they had a “highly unconventional marriage during which they lived far enough apart to permit the continuing exchange of letters.”

Abolitionist and suffragist Lucy Stone and activist Henry Blackwell created a contract when they wed in 1855, mostly in protest of coverture, in which women lost their legal existence to their husband once they married.

So did birth-control pioneer Margaret Sanger and her second husband, oil billionaire J. Noah H. Slee, whom she married in 1922. She wanted autonomy so they had a LAT, living apart together, arrangement, first in separate homes and then in separate parts of the same house.

Finally, Jackie Kennedy allegedly had a contract when she wed Aristotle Onassis in 1968, in which she declared her independence as well as separate homes and separate bedrooms within their shared homes. (It was also a safety marriage).

OK, we no longer have coverture and we have more egalitarian marriages than ever before, and thankfully women have financial independence. So do we really need individualized marital contracts?

Before you say yes or no, let’s look at what Edmiston includes in her article’s “utopian marriage contract” — agreements about birth control, having/adopting children, how children will be brought up, whose job will determine where and how the couple lives (including separate bedrooms or homes), how child care and housework will be divvied up, how they will handle finances, and sexual rights and freedoms.

Given how many of those are things couples still argue about today, and as women debate if they can have it all or just lean in, why would anyone, especially women, be hesitant to create a plan that honored both spouses’ needs and expectations?

Unless perhaps the dirty secret is that we really don’t want marital equality. As Alix Kates Shulman, profiled in that 1971 Ms. article, wrote just recently:

The idea’s limited success is hardly surprising, given the economic, social, and psychological arrangements that continue to impede equality, in marriage and out. Such strains doomed my own marriage, along with half the marriages in America. Probably not until the polity is more child- and woman-friendly, not until men and women are equally valued — economically and otherwise — not until free or low-cost quality childcare is universally available, will the ideal of equality in marriage be other than radical.”

Could it be that we women don’t really want an equal partnership? Many married moms have said they’d prefer to work part time, echoing what the rest of society believes is ideal for kids, while the majority of men would just prefer to work outside the home. And maybe, as Koltuv discovered, it’s just too hard for women to give up control.

Can we have egalitarian marriages when one spouse works full time and the other works part time, when one spouse is unable or unwilling to give up control? Or does equality even matter as long as both spouses are happy with the arrangement?

Want to individualize your marriage? Learn how by ordering The New I Do on Amazon, and, while you’re at it, follow TNID on Twitter and Facebook.

Why you need a marital plan

You’ve finally met someone special, someone you want to spend the rest of your life with. Congratulations.

Perhaps you are one of the thousands of couples who said “I do” this wedding season. Whether you end up making it “until death” or not, the intention to spend decades with someone — no matter how well you may know him or her — can be daunting. Few of us would go on an extended journey without at least some planning, yet that’s how we typically embark on our marital future.

Many people ask, “Where is this relationship going?” after several months of dating or living together. The end goal seems to be marriage, with little thought to what happens after that. And, as you know, there is a lot that happens after the wedding day.

While no one can guarantee that your marriage will be as happy and healthy as you hope — or expect — it to be, wouldn’t you feel better committing to all those years together if you had a better idea of where your marriage was going?

Believe it or not, you can; it’s called a marital plan, a framework for your marriage that you and your spouse-to-be create together so you can define and agree to what will make your marriage a success. It’s like a road map for your combined goals and dreams, with specifics on how you plan to accomplish them, and when. It holds each of you accountable. Marital planAnd it’s a way to measure your marriage’s success by something other than longevity — the only way we currently consider a marriage successful.

If you truly believe your partner is special — and I’m presuming you wouldn’t be marrying him or her otherwise — then you don’t want to just create a life with him or her; you want to create a specific kind of life. Your kind of life.

That’s what we  present in our book The New I Do: Reshaping Marriage for Skeptics, Realists and Rebels. But, we are not alone in believing that marital plans are the way of the future for anyone considering marriage, or even renegotiating an existing marriage. I chatted with two family and divorce attorneys who are big proponents of marital plans — Mark Ressa, who practices in the San Francisco Bay Area, and Michael Boulette, who practices in Minneapolis, Minnesota. They see couples at the opposite end of the happy wedding day, when all those dreams and expectations have been dashed with hard and unanticipated reality. While no can predict everything that will happen in a marriage — it’s understandable that Kris Jenner may have had no idea her husband of 23 years, Bruce, would transition into Caitlyn — there are many familiar and contentious issues in a marital arc, such as chores, kids, finances and sex, that can and should be discussed early and often as couples move from childfree dual-earners to (perhaps) dual-earners with kids to empty-nesters and all the variations in between.

A shorter version of our conversation ran in the Huffington Post; here’s our chat in its entirety.

Q: Why do you like the idea of a marital plan?

Ressa: Most couples contemplating marriage are focused on spending their lives together without fully considering what that means. Before they exchange “I do’s,” rarely do couples articulate in a meaningful way what their expectations are for the marriage. What do they want to see happen in the first three to five years? Are they on the same page about having children? What about intimacy issues; what are their expectations? Marital planning provides an opportunity to discuss these issues beforehand, see if both parties are on the same page and, more importantly, set expectations and plan how to address expectations that are not met. If the marriage does not last, at least a marital plan can be a reference that gives insight into what they had originally intended.

Boulette: I began representing clients in divorces in 2010. One year later, I got married.  With that kind of juxtaposition, you almost can’t help but start drawing parallels, look at the cases you’re working on and think, what would happen if my marriage broke up? I started discussing them with my wife. The more we talked about our “future divorce” the more I learned about what she values, what she wants out of our marriage, and what she wants out of me as a partner and as a parent to our daughter.

I’ve started to see marriage planning as an innovative solution for a number of the problems plaguing modern relationships (and the law that governs them). It’s a way to:

  •  increase marriage rates among couples that may not feel ready for marriage (in its current form) but who want to create a relationship that’s more than just roommates
  •  incorporate changing social norms around what marriage means and to embrace a variety of different “meanings” of marriage without writing any one meaning into our laws
  •  help reduce the conflict in divorce by allowing couples to create their own ideas of fairness when they still have each other’s best interests at heart

Q: How do you see a marital plan differing from a prenup?

Ressa: Pre- and post-nuptial agreements, if enforceable, dictate what happens in the event of a divorce. Marital plans document the parties’ intent and expectations about how they will move through life as a married couple. A prenuptial agreement largely deals with financial issues; a marital plan, instead, focuses on lifestyle choices.

Boulette: Marriage planning is a paradigm shift. If prenups are about protecting yourself from your spouse, marriage planning is about creating a life together and deliberately choosing the sort of relationship you want to have over any number of alternatives. Prenups are often a work-around for state divorce laws that might put one partner’s wealth at risk. Marriage plans reach beyond the financial into questions of what you want from your spouse as a partner, as a friend, as a co-parent, what you’re seeking from the marriage emotionally, physically, even professionally. And also what you’re willing to give — what you’re committed to investing to make the relationship and the family work.

Q: From your perspective as a family lawyer, what do couples ignore or misunderstand when they tie the knot?

Ressa: Most couples do not consider what happens in the event of a divorce, how the standard-one-size-fits-all divorce laws would apply in their circumstance. Rarely do I hear of couples who are about to marry — other than the small percentage who actually enter into a prenuptial agreement — contemplate financial, wealth acquisition or parenting issues.

Boulette: In first-time marriages, no couple really has any idea of what laws would govern their relationships in the event of divorce. But I don’t think that antiquated divorce laws are necessarily driving divorces or reducing relationship quality. Because getting married is so easy, at least from a legal standpoint, many couples avoid hard questions: “What if the marriage doesn’t work out?” “What if I (or you) fall in love with someone else?” “Should we prioritize both our careers equally or the one with the greatest earning potential?” Ignoring these questions can create conflict later on, and in the most extreme scenario could lead couples to question whether the relationship is right for them.

Q: In what ways could a marital plan help them?

Ressa: A marital plan forces couples entering into marriage to openly discuss issues that might create points of conflict in the future. Additionally, couples should contemplate, discuss and agree on what happens in the event an agreed-to expectation is not met. For instance, what if the parties’ intimacy expectations deviate from the marital plan? Should that trigger a requirement to discuss the issue through counseling?

Additionally, as divorce lawyers we see increases in divorce filings at multiples of seven years. You have heard of the seven-year-itch? It is real. There are also reports indicating marriages begin to come undone approximately six years prior to either party actually filing for divorce. Putting those two observations together, what if marriage plans required a therapeutic, marital counseling wellness check approximately five to six years before the aforementioned divorce-filing bumps? So a marital plan could provide the opportunity to apply some preventive medicine to maintain the health of the marriage.

Boulette: Marriage plans promote exactly the sort of “hard conversations” I mentioned before. But more than that, they provide a touch point to channel these discussions to a productive end. If you create a marriage plan and, for whatever reason, the relationship does end, you, as a couple, have created a road map for how to leave the relationship with dignity, mutual respect and exactly the sort of fairness so many divorcing couples aspire to.

A plan also comes with the added benefit of being able to revisit and revise as needed, rather than relying on shadowy recollections of a conversation you had years ago. Say two years into the marriage, life has thrown you a curve ball. That’s OK. Have a new conversation. Make a new plan.

Q: Could couples just create these marital plans by themselves?

Ressa: Couples can always DIY; most divorces are resolved by litigants who are self-represented. There is nothing to prevent a couple from creating their own marital plan.

Boulette: Of course. Nothing about a marriage plan has to be legally binding. No one would bother to get a prenup if they didn’t think it could be enforced in court, but a marriage plan can be valuable for any number of reasons even if its completely unenforceable in the event of divorce.

But if the goal is a legally binding agreement that you’ll be held to should one of you want to end the relationship, a lawyer is an important part of the equation. Prenup laws (which are inevitably the legal avenue through which marriage plans will be enforced) are such a patchwork from state to state, not just in how the law is actually written, but also in how courts interpret them. Add to that the wrinkle that marriage plans reach well beyond established law to touch on parts of couples’ lives where prenups are not traditionally enforced, and this isn’t a DIY project.

Interested in creating a specific kind of marriage? Read The New I Do: Reshaping Marriage for Skeptics, Realists and Rebels (Seal Press). Order the book on Amazon, follow us on Twitter and like us onFacebook.