Can the state regulate marriage after the fact?

I’ve been pondering this one for a while. After the actual marriage ceremony, does the state have any further oversight of what makes a marriage? I’m talking about in the US, although it would be interesting to see what happens in other countries as well.

Here is the scenario:

A man and a woman meet, date, get married, and have kids in the usual way. (As opposed to, say, a marriage for the sake of a green card.) A few years down the road however, the couple feels they made the wrong decision and each one is actually happier living the life of a single person.

They jointly own a primary residence and a vacation unit. One takes the house, the other takes the condo, but continue to own them together. They have mostly separate finances, but continue to jointly own some investments and keep a joint savings account for emergencies.

Socially, they behave as if they were legally divorced. People who would meet them after the split would be amazed to learn they are legally married.

Does the state have anything at all to say about this? I’m not saying I think it should, just that I don’t know. Is there some sort of “common law divorce” that eventually kicks in? I guess I was thinking about this because of the recent debates over gay marriage (not trying to start a GD, merely thinking about possible justifications) that assert that the state has an interest in preserving the sanctity of the institution of marriage, but does the state have any ability or interest in monitoring things after the fact?

It is sort of like proving polygamy, only backwards. If six or seven people live together and say they are married, own property and raise children together, if they hold themselves out as a married group are they guilty of the crime? Hard to say, they would really only be guilty if they claimed some benefit from claiming to be married. As a practical matter polygamy is really just a kind of fraud.

OK, now to your case, I would presume they would be legally in the clear unless one or the other took an oath that they were single, or if they tried to claim some legal benefit from being single. Otherwise, the State would have a hard time proving they were doing anything wrong.

Kids today! They don’t respect the institution of Divorce!

In the US, people remained married under the law until either divorce or death. A couple could live apart as you indicate, and would still be considered married to each other under the law (entitled to filing a joint tax return, for instance). They could take up with others, since criminal law in most states does not deal with adultery. But they could not legally marry another unless they got a divorce first (or after the death of their spouse).

Some states do have laws that allow divorce if the couple stays apart for a set length of time. However, one of the couple would have to officially file for divorce for it to be granted.

In general, though, the state stays out of it.

I would suspect that as long as neither party to the “long-distance marriage” invokes the state’s authority, it has no reason or right to enter and investigate (presuming what they individually do is legal; if one becomes a crack dealer or launders money, that’s a different question altogether).

It does need to be pointed out, though, that events happening after the wedding ceremony can affect the validity of a marriage. For example, if the parties to a marriage never have sexual congress, and one decides he/she wants it and gets perturbed at the other denying it, he/she has the grounds to have the marriage annulled (not divorce, but legal annulment – “Legally, there never was a marriage”) on that basis. “Irreconcilable differences,” “legal separation,” “separate maintenance” – the lawbooks are loaded with grounds for terminating a marriage by one means or the other based on the situation in question.

So if your intent is to be married but live as if divorced, be darn sure that both parties not only start but remain comfortable with the agreement, or you’ve established a prima facie case for divorce.

Just as an FYI: I have a friend whose parents have been doing this for about 10 years. They separated in the mid1990s (because her mother decided/discovered she was a lesbian), but decided to stay legally married for some financial reasons. Both have been living with other people for many years. While I half-suspect there may be some questionable aspects there (i.e., filing joint taxes as if they were living as man and wife), I don’t believe there are any legal problems with the marriage continuing to exist.

What exactly could the state do in this situation? They can’t be forced to live together, but the idea of a state being allowed to force any people to divorce would be troubling. I think the only place they could get into trouble is where they take advantage of financial incentives that are intended for couples.

I have been wondering about a related issue re: states redefining marriage after the fact. This came up when Alito was nominated to the Supreme Court and the Pennsylvania case was discussed in the news whereby the state had a law saying that if a woman wanted to have an abortion, she had to discuss it with her husband first. (Alito sided with the state.)

Let’s say I got married (before this law was passed) fully expecting that my medical decisions were solely between me and my doctor. Then the law gets passed and I become pregnant. All of a sudden, the fact that I married 10 years ago with a certain set of assumptions about my rights and responsibilities becomes irrelevant. What matters is the current set of restrictions defined by the state.

So I guess what I’m saying is that it looks like whatever the state decides takes effect immediately, regardless of when you became married. Personally this seems not to be fair, and it seems reasonable for someone to expect that the rights and resopnsibilities involved in their own personal marriage situation shouldn’t be changing drastically all the time.

Of course, I’m not a lawyer, etc.