By: Victoria C. Swanson

Marriage rates in the United States are now the lowest in statistical memory. Multiple policy centers that collect and analyze the data have confirmed that U.S. marriage rates have reached historic lows—and probably will stay there or continue the downward trend even further.

The group that should be getting married now, the millennials (ages 18-29), are not getting married. If this low marriage rate continues, the number of millennials who marry by age 40 could drop at least 12% from the rate among current 40 year olds. This means that fewer millennials will marry by age 40 than any previous generation of Americans.

Surveys show that those who do get married are those of higher education and higher income. While 83% of 30-50 year old men who are in the top 10% of annual earnings are married, only 50% of that same age group whose income is in the bottom 25% is married. Marriage appears to be morphing into an upper income social convention, a "class privilege," not a value or institution uniformly shared across all demographic sectors of American society.

We have all heard the dismay over statistics that show that unmarried mothers are usually poor. (As of 2011, 35% of all American children lived in single-parent homes.) But recent studies have also shown that there is no statistical evidence to support the proposition that being married would lift two parents and their children out of poverty. The United States has spent about a billion dollars since 2006 trying to educate low income Americans of the value of marriage with the goal of minimizing divorce and single parent families in the low income demographic. But these "education" programs merely stated the obvious, at best, and were patronizing at worst. Telling poor women that they should find a reliable man to marry and help support her children was not news to them. Men earning good money simply are just not available to them. The social engineers ultimately realized that the fundamental source of low marriage rates in low income demographics is that the men do not have a means of earning a living that would make them attractive as life partners and that could actually help support a wife and children. Poverty is a cause, not a result, of low marriage rates. They were trying to solve the wrong problem and, thankfully, most of these "education" efforts have since been abandoned. It remains to be seen if our policy leaders will ever find a pathway to resolving the real problem: expanding employment and earning opportunities for the men with high school (or less) education.

But there is something else happening too. People simply feel differently about marriage as an institution these days. In a survey of millennials by the Pew Research Center, 44% of this generation believes that marriage is "becoming obsolete" and that "children don't need a mother and father to grow up happily." This group also generally believes (46%) that "new family arrangements are a good thing."

The law has been peculiarly slow to react to this social upheaval, preferring to maintain the old fiction of marriage as a defining, if not controlling, status of most households. Consider, for instance, the Colorado rules for personally delivering court papers on an individual—a requirement of nearly every legal proceeding in our state. The rule states that you can leave the papers with an adult "member of the family" of the person to be served. This rule seems quaint (and useless) when over half of the adult population is now living with an unrelated "significant other," who they will consider to be as intimate and involved in their lives as any spouse may be—and who would be perfectly and practically appropriate to accept legal documents for their "significant other."

Obtaining a marriage license brings a couple within the purview of thousands of state laws that define rights and obligations between the married spouses. The mere status of civil marriage enfolds the partners into a default legal status of rights and duties and benefits without having to perform and other legal task. When less than half the adult population chooses this default legal status, more than half the adult population will be left without the default legal guarantees of rights and obligations and benefits once assumed to be universal among our residents. It seems inevitable that all states must start immediately to review and reconsider all their laws regarding "families" in light of the diminishing marriage rates and the increasing percentage of family units that are now households in our country. States will have to write new laws addressing rights and obligations among the new "families" who choose not to enter into the default legal system of marriage that has been assembled for hundreds of years in our laws.

Beginning in the 1970's, lawmakers around the country, including Colorado, purposely made laws "gender neutral," recognizing the new status of women in the society as they joined the workforce. If our lawmakers, and our legal system, fails to similarly incorporate into our laws the ever increasing new forms of households and families, there is a very real risk that our legal system will not only be an irrelevant anachronism but also one that stands to reflect only the lifestyle of the higher income residents of our state—driving the demographic wedge of our society even deeper.