A Marriage Miranda
Most of us who have watched any criminal justice series on television during our lives are familiar with at least the beginning sentences of the “Miranda warning” that must be given to anyone who is being taken into police custody and about to answer to the state regarding their conduct. These lines come out of MIRANDA v. ARIZONA(1966), a United State Supreme Court decision in which the Court found that a defendant had been deprived of his Constitutional/Fifth Amendment privilege against self-incrimination by not being given full and effective notice of his rights. Following that decision, law-enforcement officers were required to educate citizens as they were being taken into state custody as follows:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer and have him/her present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
WAIVER - Do you understand each of these rights I have explained to you?
Having these rights in mind, do you wish to talk to us now?
Thus our federal and state governments have the responsibility of “playing fair” even while enforcing laws. Similarly, the right to marry is also rooted in our Constitution, triggering rights and responsibilities of enforcement when dealing with the citizenry, rights and responsibilities that should include an educational component.
Based on over 25 years of practicing divorce law, and 5 years as a Justice of the Peace, I have observed that people rarely, if ever, have any understanding of the laws to which they voluntarily subject themselves when they get married. They fill out an application at their local city or town hall for a marriage license with no mandated training, no information pamphlet being provided, no secular equivalent of the Catholic Church’s Pre-Cana equivalent offered, much less mandated, by the state. (While there are plenty of premarital counseling books or courses out there, none of them are mandated when applying for a marriage license.)
Make no mistake, I admire family and friends who have built lasting marriages. I have observed the deep love and commitment, and the tremendous work in facing and overcoming the innate challenges. But they are the rare exceptions. Very few people of my age have been married over 20 years AND would describe the marriage as “happy.” Many who remain married have considered and/or are presently considering divorce. During the course of my professional life as a divorce attorney, I have watched the havoc wreaked by an imbalance of commitment, by disease, misconduct, betrayal, immaturity, mental illness, substance abuse, infidelity, indifference, violence. I’m hired to help clean up and divide the mess, to explain to clients the truth about the law, to stand with them as they have to face and report the most private parts of their disappointing lives, and then face uphill battles in understaffed courts as well, with overworked, underpaid judges and court personnel. I have helped my clients pick up the pieces of their lives following the financial and emotional devastation caused by lies and refusal to take responsibility for behavior, and belligerent refusal to seek professional help to address any number of problems that have become insurmountable. After witnessing all of the pain and suffering, and the relief following divorce (despite the impact on children), I have become a BELIEVER in divorce. I have become increasingly passionate about helping my clients to achieve freedom from the utterly failing enterprises of their marriages.
But I would like to see the problem addressed at an earlier juncture; I would like our state and local government to take proactive steps to advise citizens of their rights. City halls hand out licenses like candy, with no education or pamphlet about what marriage means, or what happens to your money and your children by the act of marriage. Even DCF hands you a pamphlet explaining your rights when they call on you, holding the power to take your children from you. State government needs to become more invested, more responsible, for educating citizens regarding the nature of what rights they are sacrificing, not just gaining, when they take steps to get married. Ensuring that prospective spouses have access to information about the consequences of marriage should be a priority, just as the state has interest in educating prospective drivers of the safety risks of operating a vehicle on public roads.
Does it not seem ironic that the state requires 30 hours of driver’s education, and 18 hours of instruction in a driving training motor vehicle (including a minimum of 12 hours of actual behind-the-wheel instruction plus 6 hours of observation while another student is driving and being instructed), but zero training or education on the consequences of getting married? That, if it fails, you cannot get out without the approval of a judge in a court? What the law requires regarding your money, your home, your children? It’s ludicrous that people have no understanding of what they are really putting on the line in terms of their financial and emotional freedom when things go wrong.
As a divorce attorney, I have made a good living and I feel I have been helpful to my clients. But it has become much more difficult to practice, even before COVID. Judges and courts are overwhelmed, understaffed, and have less patience for litigation. They chastise attorneys regularly for a lack of civility, even when attorneys have to deal with rule violations, lying, thievery, character disorders, rage, and panic. It’s like punishing toddlers who are fighting and hitting when the parents simply can’t manufacture the energy anymore. Litigants want individual wrongs and injustices to be addressed and righted by the benevolent authority they are supposed to be. Neither parties nor attorneys want to be lectured and chastised; we want to work diligently to help our clients come up to speed on what they did to themselves when they got married, and how they are going to manage despite the financial and emotional devastation, despite the limitations of the court process.
But I imagine it would be easier to help my clients accept the added insult of the divorce process if they could be reminded that when they first applied for a marriage license, a version of the following Marriage Colloquy was offered to them:
1. You have the right to remain single.
2. Anything you have, earn, birth or create during the course of your marriage can and will be subjected to court scrutiny and divided unevenly in a court of law, should your marriage fail for any reason.
3. You have the right to refrain from marrying, and to instead partner, live together, buy property together, enter contracts together, purchase insurance together, make each other beneficiaries on accounts, and/or procreate and birth and parent children together (subject to the laws regarding your rights and responsibilities toward each other and such children), all without getting married;
4. You have the right to talk to a lawyer about marriage, divorce and custody law, and the potential financial and custody outcomes, should a marriage fail, and you have to present your life and wishes to a judge for approval;
5. If you cannot afford to hire a lawyer, you can request a consultation with a volunteer attorney through your local Bar Association.
WAIVER –
Do you understand each of these rights I have explained to you?
Having these rights in mind, do you wish to proceed with applying for a marriage license?
What do you think about this? Let me know in the comments below!
