Marriage Options
The vows promise permanence. Conditions apply.
“To have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, ‘til death do us part.”
That’s what you say.
Here’s what you sign:
Either party may end the marriage at any time, for any reason or no reason, unilaterally. On exit, marital assets are divided approximately equally regardless of who accumulated them or why. Children are often placed primarily with one parent in practice. The other parent may be ordered to make ongoing payments calculated on income, not need, and enforceable by the state. There is no meaningful mechanism for establishing breach. There is little consideration of who initiated the exit or why.
The vows promise permanence, sacrifice, and mutual obligation. The legal structure guarantees none of it. You stand at the altar reciting terms with no legal force, while the terms with legal force are never read aloud. No other major contract in American life works this way. The ceremony says one thing. The law says another.
How We Got Here
In 1969, Ronald Reagan signed the Family Law Act, making California the first state to offer no-fault divorce. He would later call it one of the biggest mistakes of his governorship. Within fifteen years, every state had followed California’s lead.
The cultural case for no-fault was simple: the old system was cruel. And often it was. Abused spouses, especially women, were asked to prove private harm in systems poorly designed to recognize it. Judges dismissed credible claims. Evidence was hard to obtain from inside a controlled household. People remained trapped because the court demanded proof that was often impossible to produce.
That failure was real. But the reform that followed did more than remove a bad evidentiary burden. It removed accountability from the structure altogether.
The old system had an internal logic. One party—historically, the wife—often accepted career risk by leaving the workforce to raise children and manage the household. The other accepted a long-term obligation to provide financial security. If one party wanted out, breach mattered. Adultery, abandonment, cruelty. The exit terms reflected who had broken the arrangement, and the consequences fell on the breaching party.
You can argue about whether that system was fair. But it was economically coherent. Both parties accepted obligations. Both received consideration. Exit was tied to conduct.
No-fault didn’t refine that structure. It hollowed it out.
The Option You Didn’t Know You Sold
If your business partner offered a term sheet that said, “Either of us can walk away at any time, for any reason, and you may still owe me half plus ongoing payments on any income you make anywhere,” you would leave the room. We do not accept terms like that anywhere else because we understand what they are.
That is not a bilateral contract. It is an option.
And of course people want an option. Marriage involves real risk. For women, that has historically included pregnancy, childbearing, domestic labor, and career interruption. Wanting protection against a bad outcome is rational.
But protection and an option are not the same thing.
Protection says: if the other party fails to uphold the deal, you can exit with compensation for what you sacrificed in reliance on it.
An option says: you can exit for any reason or none, and still collect.
One enforces the agreement. The other makes the agreement optional—but not for both parties equally.
That is the trick at the heart of modern marriage law. We still speak as though marriage is a binding mutual commitment, while structuring it as a relationship one party may terminate without breach and with substantial legal claims intact.
Women initiate approximately 70% of divorces, a figure that has held for decades. In any other market, when one party exercises an exit option at roughly two and a half times the rate of the other, we call that a positive expected value. No one would describe the other side’s position as a rational investment.
The Rationale That Evaporated
The defense of the current system is familiar: alimony and asset division compensate real sacrifice. Fair enough. If one spouse stepped out of the workforce for fifteen years to raise children while the other built income and assets, that sacrifice created a legitimate claim. Compensation there is not just morally justified. It is economically coherent.
The problem is that the compensation regime outlived the conditions that justified it.
Women’s labor force participation surged after 1970. Women now earn the majority of bachelor’s and master’s degrees. In most households, both partners work. In many marriages, the premise that one party sacrificed all career capital for the other is no longer the norm. But the legal defaults still reflect that older world.
Support obligations are still often keyed primarily to the payer’s income rather than the recipient’s realistic earning capacity. Custody norms still carry assumptions inherited from an era when mothers were more often full-time caregivers because they overwhelmingly were.
Even when individual cases may be arbitrated differently, rational people do not evaluate contracts by average outcomes. They evaluate exposure.
If you earn enough, support obligations can last for years, even indefinitely. Your former spouse may share a home, expenses, and a life with a new partner without necessarily changing those obligations, so long as the arrangement avoids the legal trigger that would end them. The incentive is obvious. The system can reward dependency and penalize formal remarriage.
A structure that rewards the lower-earning party for remaining lower-earning is not built to restore independence. It is built to preserve claims.
And the losses it recognizes run in only one register. Economic sacrifice counts. The loss of daily access to your children, the collapse of the household you built, the destruction of the family unit around which you organized your life—those may be devastating, but they are not compensable. The law sees money. It is far less able, or willing, to see anything else.
The Retroactive Rewrite
One of the least discussed features of the no-fault transition is that it was applied to marriages already in existence.
People who married under one legal framework did not simply receive a new procedural rule. They saw the practical terms of the institution change while they were already bound by it. The difficulty of obtaining a unilateral divorce had been part of the bargain as they understood it. Then the state rewrote the exit terms without asking either party.
If your lender rewrote your mortgage fifteen years in, you would call it a material change. When the state rewrites the practical terms of marriage after the fact, we call it progress and move on.
Whatever else no-fault was, it was not merely prospective reform. It was retroactive restructuring.
The Downstream
The U.S. marriage rate has fallen more than 60% since 1970. The median age at first marriage for men has risen from 23 to 30. The mainstream explanation is cultural—masculinity in crisis, fragile egos, boys who never grew up.
But there is a simpler explanation: when the terms of an agreement deteriorate, fewer people sign it.
Men do not need to read family law treatises to understand the risk. They see divorced fathers, brothers, uncles, and friends. They infer the terms from observed outcomes. They do what rational actors do when exposure is large and downside is asymmetric: they become more selective, delay commitment, or avoid the contract entirely.
And this is treated as a moral failure in men even though similar selectivity is considered obviously rational in women. Women are told to be choosy because childbearing and childrearing are high-cost, high-risk investments. Correct. Men make a parallel judgment about a different form of exposure: long-term financial obligations, custody risk, and legal vulnerability after exit. That is not a failure to grow up. It is what people do once they’ve grown up.
And as marriage falls, fertility tends to fall with it. Declining fertility produces the worker-to-retiree ratios that make Social Security mathematically impossible. These are not disconnected developments. A society that makes marriage less attractive should not act shocked when fewer people build families inside it—or when the systems that depend on those families start to buckle.
The Fault in No-Fault
The theory behind no-fault is that courts should not have to decide who was the bad spouse. Marriage is too intimate, too emotional, too morally tangled for that kind of adjudication.
That sounds humane. It is also wrong as a matter of contract law and basic principle.
Fault in contract is not the same thing as moral condemnation. If someone breaks a lease, the court does not determine whether they are wicked. It determines whether they breached the lease agreement. Marriage is more intimate than a rental, but the legal question is just as legible: did one party terminate the agreement unilaterally, and if so, on what grounds?
Courts are already deep in the intimate wreckage of family life. They divide assets, evaluate custody, assign support, hear abuse allegations, and issue protective orders. We have somehow decided that the relationship is too personal for accountability but not too personal for compulsory financial transfer. That is an oddly selective form of jurisprudence.
And the irony is worse than that. Under a fault-based regime, abusive conduct could matter inside the dissolution itself. Under no-fault, the formal exit terms are less tied to conduct. The spouse who was betrayed and the spouse who betrayed may stand in much the same position. The spouse who was beaten and the spouse who did the beating may still exit through a framework built to sidestep responsibility.
What no-fault eliminated wasn’t the cruelty of adversarial proceedings—anyone with a divorce decree can tell you the cruelty survived just fine. It removed the enforcement principle that gave the agreement real meaning.
Without that, marriage is not a binding covenant in any serious legal sense. It is a ceremony followed by a state-administered financial regime.
Fixing Your Marriage
This is not an argument against marriage. It is an argument that marriage law has drifted so far from ordinary principles of obligation, breach, and reliance that the institution no longer functions like the commitment it claims to be. The demographic data increasingly reflect that.
A sane reform would not abolish no-fault divorce. It would limit it.
If both parties agree the marriage is over, no-fault dissolution should remain available—mutual termination is a standard feature of any agreement. But if one party wants out and the other does not, unilateral exit should require either cause or materially different financial treatment. Not because courts should police romance, but because a contract where either party can walk away unilaterally without consequence is a contract without an enforcement mechanism. Which is to say, not a contract.
Beyond that, support should account for earning capacity, not just current income. Cohabitation and shared living arrangements should matter. Dual-income marriages should recognize the reduced financial risk and sacrifice. Custody presumptions should be genuinely equal rather than rhetorically equal and practically lopsided.
These reforms are obvious as contract principles and nearly impossible as politics. Family law is state law. Reform means fifty separate fights. The beneficiaries of the current system are organized and morally legible. The people most exposed to its downside often do not understand the terms until they are already inside them. And any proposal to make unilateral divorce less frictionless will be caricatured as an attempt to trap women, regardless of what it actually says.
So the practical alternative is obvious: fewer people will sign.
They will still live together. They will still sleep together, have children, bicker, make up, cheat, break up, and leave dishes in the sink. They will simply do less of it inside of a marriage.
For fifty years, we have treated marriage as sacred when we want to celebrate it and contractual when we want to dissolve it. Sacred when we want to shield it from scrutiny. Contractual when we want courts to transfer assets and impose obligations. The result is an institution with the enforceability of a handshake and the financial exposure of a leveraged buyout.
How romantic.