1. society
2. social institution
3. marriage

49 Stan. L. Rev. 887
Stanford Law Review
April, 1997
Note
PLANNING FOR LOVE: THE POLITICS OF PRENUPTIAL AGREEMENTS
Allison A. Marstona
Copyright (c) 1997 Board of Trustees of the Leland Stanford Junior University; Allison A. Marston
This note challenges the stereotypes that define the role of prenuptial agreements in contemporary American society.
Specifically, this note questions the assumption that only the rich, the selfish, or the mercenary can benefit from a prenuptial
contract. Allison Marston examines the increasing use of prenuptial agreements over the past twenty years and describes the
types of people who should consider drafting them. Ms. Marston summarizes the law about prenuptial contracts and the
kinds of provisions that courts will and will not enforce. She then places prenuptial agreements in a legal, historical, and
psychological context. Ms. Marston argues that the villification of prenuptials is a curious, and even irrational, response to a
document that merely supplants state-written contracts governing the disposition of assets at the end of a marriage, has a
long history in Anglo-American society, and potentially improves communication on important issues before marriage.
Nevertheless, this note acknowledges that many prenuptial agreements have been signed that disproportionately hurt one of
the marital partners. Ms. Marston argues that the solution to this problem is not to limit the enforcement of these agreements
but to seek to ensure that each party has full knowledge of his or her rights and has the opportunity to negotiate the terms of
the contract. To this end, she concludes that courts should require that each party entering into a prenuptial agreement have
had the benefit of consulting with independent counsel prior to the signing of the contract. This reform, not yet embraced by
any jurisdiction, would preserve parties’ freedom of contract while preventing the coercion possible in negotiations that take
place in the highly-charged atmosphere of an impending wedding. *888 ”All is prepared for sealing and signing,
The contracts has been drafted as agreed;
Approach the table, oh ye lovers pining,
With hand and seal come execute the deed!”
--Gilbert & Sullivan, The Sorcerer1
“For to be wise, and in love, was not given to the Gods themselves.”
--Aphra Behn, The Confession of the New Married Couple2
Introduction
A prenuptial agreement does not conjure an image of marital equality. Viewed by many as the province of the wealthy, the
age disparate, the heartless, or the simply greedy, prenuptial agreements are often regarded with distrust and hostility.
However, prenuptials may not deserve this unseemly reputation. This note examines the cultural and legal context of
prenuptial agreements and argues that, with the proper legal safeguards and sufficient trust between spouses, they can be
useful, even relationship enhancing, documents.
In 1990, Modern Bride featured a lengthy article on this increasingly popular contract. Between pages devoted to wedding
etiquette and bridal fashions, the magazine explained:
Current trends toward delayed marriage, cohabitation, and rising divorce and remarriage rates have combined
to create a new awareness of the seriousness of the marital contract and the far-reaching consequences that
contract, once made, can have on individual lives. Thus, more and more couples feel the need to mix a little
realism with romance, and they’re filling that need with premarital agreements, also called prenuptial or
antenuptial contracts.3
After detailing the background, purpose, and legal implications of prenuptial agreements, the magazine advised readers to “[s]
hare this article and your feelings about premarital contracts and some of the issues they address with your fiancé. Even if the
two of you decide that a premarital contract isn’t for you, discussion about it will prove enlightening and worthwhile.”4
Interest in prenuptial agreements is not confined to the pages of bridal fashion; articles on prenuptial agreements have been
appearing with increasing regularity in both scholarly literature5 and the popular press.6 Magazines as diverse as
Cosmopolitan *889 and Money have recently featured stories describing various premarital agreements.7
While many prenuptial agreements detail the division of property or other assets upon death or divorce, they may also
include provisions regulating the ongoing marriage.8 One such agreement, drawn up by a New Mexico couple, has received
national attention.9 The prenuptial that Rex and Teresa LeGalley created runs sixteen single-spaced pages and specifies
minute details of their daily lives, such as how much money per week they get for expenses ($70), what kind of gas they
will buy (Chevron unleaded), and how often they will engage in “healthy sex” (three to five times per week).10 Why such
intimate specificity? Noting that the divorce rate for first marriages has reached 54 percent, Rex LeGalley comments, “[n]
obody plans to fail. . . . But a lot of people fail to plan.”11
Popular reaction to the LeGalleys’ detailed planning has been mixed, revealing the controversy that surrounds contemporary
prenuptial agreements. Marriage counselors have “extolled it as a progressive example of premarital guidance counseling that
can solve problems before they arrive.”12 In contrast, a New York “celebrity” divorce lawyer condemns the agreement, stating
that “[y]ou can’t legislate for the human heart. . . . You should have faith in the person you are marrying, not in a
document.”13 For Teresa LeGalley, however, writing the contract constituted an integral part of their courtship.14
The responses to the LeGalley’s extreme prenuptial agreement reveal the vast range of attitudes engendered by these contracts,
a hybrid of romance and optimism crossed with pragmatism and individualistic concerns. Many people have a viscerally
negative reaction to prenuptials and declare they “would never sign one.” On the other hand, professionals in the field have
extoled the agreements for the open communication and opportunity for ex ante problem solving they bring to a marriage.
This note evaluates prenuptial agreements by examining their cultural and legal context. Despite the LeGalleys’ interesting
example, this note focuses on prenuptial agreements that distribute assets upon divorce or death. Part I discusses the general
purpose of prenuptial agreements, examines their rising popularity, and details those couples who, according to experts and
the popular press, should enter into them. The note then discusses general objections to and endorsements of prenuptial
agreements. Part II explores the basic law governing *890 prenuptial agreements and describes their treatment by courts,
which has evolved from outright rejection to widespread acceptance. Part III argues that hostility towards prenuptials ignores
the ramifications of the state-imposed marital contract, finds little support in Anglo-American marital history, and
contradicts recent psychological literature about the importance of communication in marriage. The note then briefly
describes the cultural context of marriage, contrasting the American ideal of romantic absolutism with other cultures’ beliefs
about the marital relationship. Finally, Part IV argues that states should make consultation with independent legal counsel a
prerequisite for the enforceability of prenuptial agreements. This reform preserves the benefits of the freedom to contract
while seeking to ensure that parties do not unknowingly waive valuable legal rights.
I. Contemporary Prenuptial Agreements
A. The Purpose of Prenuptial Agreements
Inescapably, prenuptial agreements are about money. They focus on property and support rights upon the legal or natural end
of the marriage.15 Altering the state-imposed default formula for spousal rights provides a central purpose for many
prenuptials.16 Since the agreements provide for the distribution of assets upon death or divorce, they can serve an important
role in estate planning.17 Prenuptials also allow couples to specify which assets should be considered marital property and
which assets should be treated as personal property upon the dissolution of the marriage.18 Prenuptial agreements allow
couples to write a “road map,” that structures their finances according to a mutually predetermined plan.19 In addition,
Prenuptial agreements enable an individual to protect a family business or specific piece of property from possible claims by
a former spouse.20
*891 B. The Increasing Popularity of Prenuptial Agreements
More couples are writing prenuptial agreements than ever before. One report estimates that the number of prenuptial
agreements tripled between 1978 and 1988 and has steadily increased ever since.21 Of marrying couples, approximately 5
percent (about 50,000) sign prenuptials each year.22 Furthermore, an estimated 20 percent of remarriages feature a prenuptial
agreement.23 Not surprisingly, prenuptials have attained prominence in the national imagination. As one commentator noted,
“[w]hen a couple heading down the aisle today is well-off, the curiosity once centered on a dowry is likely to concern the
terms of a prenuptial agreement.”24
Commentators have identified several reasons for the rising popularity of prenuptial agreements. The prevalence of divorce
and remarriage has prompted couples to plan more carefully, realistically, and independently for their economic futures.25
Currently, over forty percent of American marriages involve a “second or higher-order marriage” for one or both of the
parties;26 an estimated 60 percent of these higher-order marriages will end in divorce.27 As one government study concluded,
“[a] large segment of the United States adult population flows into and out of several marital categories during [its] life
course.”28 This pattern caused one commentator to note that, “[i]n the United States, there is now a fundamental right to
marry, and marry, and marry.”29
In addition, women increasingly bring tangible assets to the marriage, as a result of both their rising participation in the
labor force30 and the older age at which they are likely to marry for the first time.31 These women use prenuptial agreements
to protect their individually held assets. Finally, courts’ greater willingness to enforce provisions of prenuptials provides an
obvious reason for *892 the increasing use of these agreements.32 Whatever the reasons underlying a couple’s decision to
write a prenuptial agreement, it is clear that the aggregate number of couples signing prenuptials has been steadily, even
spectacularly, increasing.
C. Who Needs Prenuptial Agreements?
Although some experts assert that “everyone contemplating marriage should consider drawing up a prenuptial agreement,”33
most commentators believe that prenuptials are only occasionally necessary.34 Wealthy couples have long been prime
candidates for prenuptials. Famous couples who have entered into prenuptial agreements include John F. Kennedy, Jr. and
Carolyn Bessette, Michael Jackson and Lisa Marie Presley, and Madonna and Sean Penn. Besides protecting their fortunes,
prenuptials allow the rich and famous to circumvent some of the unpleasant discovery proceedings endemic to a contested
divorce.35
Couples in which one or both of the partners has been previously divorced may also have good reason to seek the protections
of a prenuptial agreement. Often the parties wish to protect their assets for their children of former marriages. Likewise, a
previously divorced fiancé may use a prenuptial agreement to prevent a reoccurrence of the bitterness engendered by the
dissolution of the prior marriage.36
Parties also employ prenuptial agreements to protect family wealth or businesses from potential disputes that arise upon
death or divorce.37 Financial experts advise people who have a “reasonable sum of money,” estimated by some at
$500,000,38 and two-income families who wish to protect individual assets to enter into prenuptial agreements.39 Other
favorable candidates for prenuptials include couples that purchase a home before the wedding,40 couples *893 in which one
spouse bankrolls the other’s education,41 and couples in which one spouse has substantial debt.42 Although technically not a
prenuptial agreement, gay and lesbian couples may also draw up agreements specifying the division of the couple’s assets in
the event the relationship terminates.43
D. The Cost of Prenuptial Agreements
The media report that drafting a prenuptial agreement costs between $1000 and $5000.44 A particularly complicated
agreement may cost as much as $25,000.45 Articles written by lawyers for other lawyers stress the difficulty of drafting
enforceable prenuptial agreements. As one article notes, “[t]here are few areas of our law which are so emotionally charged
and expose attorneys to such ominous risks as antenuptial agreements. The stakes are inordinately high, and one misstep can
spell disaster for both client and attorney.”46 Another publication warns that “improperly drafted or executed premarital
agreements spawn litigation. And like wills, premarital agreements are unexploded mines ticking away in your closed-file
storage room. Proceed with care.”47 Given the risks for lawyers and the resulting cost of drafting the agreement, it is unlikely
that prenuptials will prove a feasible option for all couples.
E. Common Objections to Prenuptial Agreements
Detractors voice many objections to prenuptial agreements. First, they consider them a bad beginning for a marriage. As an
article advising lawyers explains:
You are viewed as an impediment by individuals focused on one of life’s strongest emotions: love. Your
attempt to interject rational and logical problem solving to negotiate a complex contract is often
unappreciated. Although your client may declare a need for the agreement and may have sought out your
services, to a greater or lesser degree, neither party appreciates your intrusion into their idyllic expectations.
No one wants to deal with a subject that is the antithesis of all of the other acts and thoughts at this moment
in their lives. You have asked them to contemplate divorce and death.48
*894 In addition to these inherently grim features, prenuptial agreements can also be seen as betraying a lack of trust in one’s
fiancé.49
Other objections include allegations that prenuptials dampen the romance of engagement,50 introduce the grasping “morals of
the marketplace” into an intimate relationship,51 and place too much emphasis on the good of the individual at the expense
of the good of the couple.52 Religious figures argue that prenuptials distract couples from the “five C’s” of marriage:
“communication, commitment, conflict resolution, children, and church.”53 As one clergyman cautions, “[p]eople have to be
prepared for the idea that marriage is work. It’s not just a merging of assets.”54
But the main attack against prenuptial agreements is the allegation that one party may not be treating his or her fiancé in a
fair manner. Not surprisingly, the wealthier party may impose terms on the less well-off party.55 Many critics argue that
prenuptial agreements overwhelmingly hurt women by virtue of their inferior bargaining position.56 Certainly, women are
more likely than men to contest prenuptial agreements.57 However, some experts argue that prenuptials may actually benefit
women because “[w]omen, who have traditionally had less power, may feel their rights are best protected if they are
formalized.”58 These issues are explored in more detail in the last section of this note, which advocates that all contracting
couples seeking the benefits of a prenuptial agreement be represented by independent counsel.59
F. The Benefits of Prenuptial Agreements
Notwithstanding the concern voiced by detractors, advocates of prenuptial agreements argue that negotiating a prenuptial may
save a couple from a disastrous marriage. A New York lawyer says of couples who break up during *895 negotiations, “I
don’t think I prevented a marriage. I think I prevented a divorce.”60 Others argue, however, that negotiating and signing a
prenuptial agreement has no effect on a couple’s relationship: “Many people sign an agreement, put it in a drawer and never
look at it again . . . . They have a happy marriage, or contrary to what a spouse may be obligated to do, even if they’re
divorced, they may give more than they’re required to.”61 From this perspective, prenuptial agreements certainly do not
jeopardize a good marriage.
Experts point out that prenuptial agreements force couples to grapple with a major source of disagreement before the wedding
and allow for better communication about finances once couples are married.62 One article stated, “[c]ongratulations on your
engagement! Have you brought up the ‘M’ word with your future spouse yet? That’s the ‘M’ word as in money, not
marriage. If not, do it now, because the success of your marriage may depend on how you and your spouse communicate
about money matters.”63
Rather than demonstrating a lack of faith in the motives of the other party, proponents of prenuptials contend that an
agreement may actually be an act of good faith, demonstrating that no secrets exist between the parties.64 One sample
prenuptial agreement reads:
[X] and [Y] intend to marry subsequent to the date of this agreement; and because of their mutual feelings of
love and honor for each other, the parties enter into this agreement to eliminate, as much as possible, any
future impediment(s), to their marriage that might arise from uncertainties as to their respective financial
responsibilities to each other.65
Thus, proponents believe the alleged negative effects of prenuptial agreements--such as weakened trust between the parties-may actually be less likely to occur with an agreement than without one.66 Yet these same advocates point out that the
decision to enter into a prenuptial agreement “must be the result of a process the couple goes through and must not be
imposed upon them by their lawyers.”67
Prenuptials often aid family harmony in second marriages, especially for children from the first marriage worried about their
inheritance. “It’s good to get [property issues] out up front so the children [of previous marriages] feel good about the
marriage . . . . It reduces family tension because everyone understands they are not being cut out of family assets.”68
*896 Since 50 percent of American couples divorce,69 people frequently sign prenuptials hoping to avoid much of the trauma
associated with their break-up. “Prenuptial agreements seek to head off the nastier aspects of a divorce, if one does occur, and
to avoid the maneuvering over assets that can escalate in the midst of a divorce.”70 Courts have argued that prenuptial
agreements might actually encourage marriage: If previously married individuals can’t contract to avoid the most unpleasant
aspects of divorce, they might simply choose not to get married.71
Some proponents even believe that prenuptial agreements should be mandatory for all couples wishing to marry.72 “Legal
scholars and sociologists now generally favor such contracts as a way to protect individuality and to help clarify important
issues for both parties in the relationship. Contracts allow the courts, attorneys, parties to the contract, and others to reflect
on the priorities and commitments of the couple.”73 Whatever one might think of the social implications of such a
requirement, it is unlikely that any state will institute such a policy given the costs associated with prenuptial agreements.74
As evidence of their effects is sparse, whether prenuptials help or hinder marriages may never be known. The individuality of
each marriage decision makes generalization difficult. Nevertheless, prenuptial agreements continue to generate much
controversy. That controversy arises from the central tension embodied in the agreements: their unique mix of a business and
a romantic transaction. In the words of one lawyer, a prenuptial agreement “is like drawing up a divorce in advance.
Philosophically, I don’t approve of them. As a lawyer, I do.”75 Judith Younger, a scholar who has written frequently about
prenuptial agreements, notes,
As a genre, [prenuptial agreements] exhibit a fascinating duality; on the plane of time, they are venerable, yet voguish; in
terms of social policy, they are, at once, favorites and black sheep; and in order to be valid, they must comply with two sets
of rules, those applicable to ordinary contracts and those designed especially for them.76
*897 The dualities Younger has identified inform the debate surrounding prenuptial agreements and must be acknowledged
in any effort to reform the law governing these contracts.
II. The Basic Law Governing Prenuptial Agreements
A. The Pre-1970 Approach: Judicial Paternalism
Until 1970, prenuptial agreements providing for the disposition of assets upon divorce were unenforceable in the United
States. Prenuptial agreements that addressed the property rights of a surviving spouse at widowhood, however, had long been
upheld in many states.77 Courts had voided prenuptial agreements that contemplated divorce for many reasons: the contracts
were legally improper because they were “contrary to the concept of marriage”; they would cause the institution of marriage
to lose its “dignity and sacredness”; they would mire the courts in ceaseless, minor litigation; they would impoverish wives
and leave them dependent on state support; they would encourage “the property-owning spouse to abandon his marriage
partner”; they would make people endure bad marriage conditions for fear of losing all material possessions; and they would
usurp the traditional function of the equity courts to settle divorce rights.78 As the Alaska Supreme Court noted,
The traditional common law view was that prenuptial agreements in contemplation of divorce . . . were inconsistent with the
sanctity of marriage and the state’s interest in preserving marriage and maintaining the financial security of divorced persons.
Courts uniformly viewed these agreements as inherently conducive to divorce and as allowing a husband to circumvent his
legal duty to support his wife.79
Courts also treated the negotiations preceding prenuptial agreements with scepticism and outright paternalism. For example,
one nineteenth century court worried that women would be unable to contract freely: “What person so exposed to imposition
as a woman, contracting personally with her intended husband, just on the eve of marriage, at a time when all prudential
considerations are likely to be merged in a confiding attachment, or suppressed from an honorable instinct and sentiment of
delicacy?”80
In retrospect, it seems inevitable that these archaic attitudes would give way in the face of a changing American society.
B. Prenuptial Agreements Enter the World of Contracts
The bellwether case came from Florida. In 1970, the Florida Supreme Court held in Posner v. Posner81 that prenuptial
agreements that contemplate divorce “should no longer be held to be void ab initio as ‘contrary to public *898 policy.’ “82
Other courts and states followed suit,83 and prenuptial agreements that include divorce provisions are now generally
enforceable in all states. The paternalism demonstrated by earlier courts has decreased as overall enforceability has risen. “No
longer will the courts in viewing antenuptial contracts invariably begin ‘with the realization that between persons in the
prematrimonial state there is a mystical, confidential relationship which anesthetizes the senses of the female partner.”’84
Contemporary courts review prenuptial agreements for both procedural and substantive fairness. Procedural fairness demands
that the parties enter into the agreement voluntarily and that each fully discloses to the other his or her assets.85 Prospective
spouses are considered “to be in a confidential or fiduciary relationship . . . [and] are held to standards of the highest good
faith and fair dealing.”86 Under the rubric of substantive fairness, courts may assess the parties’ objectives, their financial
situations, their physical and emotional conditions, their other family commitments or obligations, their expected
contributions to the marriage, their business or financial expertise, and their financial needs.87
In sum, prenuptial agreements must adhere to the normal rules of contract: They must be entered into voluntarily, “made by
competent parties, supported by consideration, comply with any applicable statute of frauds and be consistent with public
policy.”88 However, unlike ordinary contracts, the parties need not show consideration; the marriage itself fulfills that
prerequisite.89 Nevertheless prenuptial agreements remain more vulnerable to attack than commercial contracts because of
special standards that govern their enforcement.
Provisions of prenuptial agreements that conflict with public policy will not be enforced. The most common types of
provisions that courts have held invalid contravening public policy concern children, including waiver of child support,
custody, or visitation rights.90 In addition, courts will void clauses that allow a party to profit from or otherwise “encourage”
procuring a divorce from their spouse.91 However, courts have held that prenuptial agreements with unequal *899 provisions
for the husband and wife, often the primary reason for entering into the agreement, are not contrary to public policy.92 In
some states, courts have even allowed one party to eliminate completely the other party’s marital estate.93 Nevertheless,
courts will invalidate agreements that make one party financially dependent on the state.94
C. Uniform Premarital Agreement Act Standardizes Review
Courts’ treatments of prenuptial agreements have become further standardized since the promulgation of the Uniform
Premarital Agreement Act (“UPAA”)95 in 1983, which has subsequently been adopted by over half the states.96 At the
forefront of the trend towards greater enforceability, the UPAA treats prenuptials like ordinary contracts. Indeed, the Act has
been strongly criticized because of its relative insensitivity to the doctrine of unconscionability, a standard defense to the
enforcement of even purely commercial contracts.97 Under the UPAA’s section 6, an agreement must be unconscionable and
there must have been nondisclosure by one of the parties to render it unenforceable; neither unconscionability nor
nondisclosure is sufficient to void a prenuptial agreement.98
Despite the generous enforcement standard provided by the UPAA, many commentators call for greater scrutiny of prenuptial
agreements.
The features of antenuptial contracts that justify greater state supervision than is ordinarily exerted over commercial contracts
include the special legal status of the marriage relationship in our society, the trust and confidence the law expects of
marriage partners, the emotional intensity surrounding the desire to marry, the common belief that the marriage will last
forever, and the potential lack of understanding of the economic rights that are being waived. This coalescence of factors,
when viewed against the backdrop of persistent gender inequality in the marketplace, warrants a relaxation of the rules of
contract to accommodate other social values.99
Whatever the standard courts use for evaluating prenuptials, they are currently much more willing to enforce prenuptials than
they were thirty years ago. Couples who wish to write an enforceable contract need only decide what provisions to include.
*900 D. The Scope of Prenuptial Agreements
Many magazine articles and books offer advice on what provisions to include in a prenuptial agreement. A book written
specifically for the layperson suggests that a prenuptial contain the following clauses: duration of the contract; division of
property; division of income; treatment of debt; specification of support and living expenses; decisions about surnames, birth
control, children, housework, domicile, religion, wills and inheritance; a blueprint for the resolution of arguments; and a
provision for dissolution of the marriage.100
Nevertheless, courts generally will not enforce provisions of prenuptials that regulate conditions of the ongoing marriage,
citing the “well-established rule that it is improper for courts to intervene in a married couple’s daily domestic affairs.”101
One wonders, however, if courts simply do not want to enforce agreements that provide that a treasured snowball collection
may be kept in the freezer, that one party must walk the dog, or that a husband has the option to sue for divorce if his wife
gains more than fifteen pounds.102
Another commentator has advanced a different theory for the unenforceability of these provisions. Citing a case in which the
court would not enforce a provision that guaranteed that the husband’s mother could live with the married couple, the author
notes,
The court seemed to suggest that prospective spouses might, in their enthusiasm about their future marriage, make promises
to one another that human nature would prevent them from performing as the marriage progressed. It is likely that many
courts, while not saying so explicitly, have refused to recognize premarital contract regulating the ongoing marriage not
because they violate “public policy,” but because they violate human nature.103
In contrast, courts will generally enforce agreements that detail property distribution at divorce or death. Mere legal
enforceability, however, has not changed many people’s attitudes about prenuptial agreements. A true understanding of the
potentials and pitfalls of prenuptials requires examination of the legal, historical, and psychological context surrounding the
agreements.
III. Prenuptial Agreements in Context
Despite the increasing enforceability of prenuptials and the wealth of information available to couples contemplating such
agreements, many couples still feel money and romance are incompatible subjects for a contract. Romantic love remains an
important force in American culture--so strong that most *901 couples believe they will never divorce, despite the high
divorce rate in the United States.
In a study of engaged couples applying for marriage licenses, researchers discovered that there was a significant discrepancy
between what most couples know about divorce and what they think their chances are of getting divorced. Respondents in
the study correctly answered that the U.S. divorce rate is approximately 50 percent. As for their own futures, “the median
response of the marriage license applicants was 0% when assessing the likelihood that they personally would divorce.”104
Only 1.5 percent of the respondents expressed any interest in entering into a prenuptial agreement, and only 4.5 percent
indicated any interest in consulting with an attorney before marriage.105 As the authors of the study concluded, “the
difficulty . . . for young adults . . . is coming to terms with the non-romantic aspects of marriage in a culture that exalts
romanticism in personal relationships.”106
Nevertheless, prenuptial agreements should not be seen as antithetical to American culture. There are compelling legal,
historical, and psychological reasons why these contracts hold an important and logical space in the marital cycle.
A. The Legal Context of Marriage
Many engaged couples fail to realize that even without a prenuptial agreement, any two people who marry enter into a
contract. This contract is written by the state without any input from the marrying couple. It has been labeled the “marriage
contract.”107
The idea of a contract within marriage will strike many as incongruous, for marriage is typically thought of as the most
intimate and private social relationship, while a contract is typically regarded as the prototype of rational business
transactions. And yet, upon closer examination, it will become clear that there is an implicit contract that governs every
marriage--an unwritten contract that is imposed by law.108
The state’s involvement in the marriage “contract” reflects the special status marriage has long enjoyed in the common law
tradition. In 1888 the Supreme Court declared of marriage:
[It] is not so much the result of private agreement, as of public ordination. In every enlightened government,
it is preëminently the basis of civil institutions, and thus an object of the deepest public concern. In this
light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public
institution, giving character to our whole civil polity.109
*902 This characterization of marriage as a “public institution” justified state intrusion into the intimate details of a marital
relationship. As the California Civil Code declares, “[m]arriage is a personal relation arising out of a civil contract between a
man and a woman, to which the consent of the parties capable of making that contract is necessary.”110 This contract
includes the provision, for example, that “each [party] owes the other financial support.”111 Not only a contractual
relationship, marriage is a legal status. “As soon as a couple marries, . . . the marriage relationship itself is defined as a legal
status with consequences--economic and personal obligations during and after marriage--that are set and controlled by society
through laws and judicial interpretations of laws.”112
The state also dictates the default terms of the marriage contract by governing the distribution of property and assets at the
end of the marriage. When a man and woman are about to marry, “they are contemplating a uniquely state-supported
relationship of human intimacy, a relationship that has always received special governmental protection. Only the state
recognizes the means of creating the relationship, and it likewise holds a monopoly on the means of dissolution.”113 All
states define marriage, in part, as an economic partnership, and the divorce statutes reflect that belief.114
Despite the importance of the state-created marriage contract, many engaged couples display a stunning lack of knowledge
about the terms of the agreement. The marriage license applicants in the above study115 scored only slightly better than
chance when questioned about various state divorce statutes.116 Not only are many couples ignorant of the laws on the
books, there is also inherent uncertainty in judicial construction of these statutes.
When you enter into this contract by saying “I do,” you are subscribing to a whole system of rights, obligations and
responsibilities. Unlike most other contracts, however, you never get the chance to read the terms or the fine print provisions
because the provisions are unwritten and the penalties for breach unspecified. In no other area are contracting parties so in the
dark.117
Nor does the marriage contract, as currently written, take into account the many circumstances that a divorcing couple may
face. Instead, the courts’ interpretation of these statutes is based on judicial perception of the “typical” couple. “When it
comes to marriage and divorce, it is costly to be different.”118 *903 For example, traditional divorce law assumes that all
families are first families.119 As a result, traditional law fails to specify how the claims of a family from a second marriage
should weigh against the needs of the family from the first marriage.120
Despite the tradition of state involvement in the marital relationship, the states have been increasingly willing to let parties
contract the terms of their own marriage. This development parallels a trend throughout family law in which private norm
creation and decisionmaking have trumped state-imposed rules.121 This evolution is a response to the rapid social change in
American family patterns over the last thirty years.122
Decisions construing family law have begun to place more emphasis on the individual than on the marital unit. In 1972, for
example, the Supreme Court stated that “[t]he marital couple is not an independent entity with a mind and heart of its own,
but an association of two individuals each with a separate intellectual and emotional makeup.”123 In one commentator’s
view, the Court’s emphasis has evolved from viewing marriage as an important public institution, to viewing “marriage as
essentially a private relationship, the main purpose of which [is] to promote individual happiness and personal
fulfillment.”124
Prenuptial agreements allow couples to take advantage of this individual autonomy and construct their own version of the
marriage contract. These agreements allow couples to contract out of the state model’s emphasis on the traditional family
and, if they wish, to interject a more egalitarian model than that imposed by the state.125 There seems to be little opposition
to the view that couples should be allowed to write prenuptial agreements. “It would be perverse to allow a prospective
spouse more freedom to arrange the terms of a new car loan than to determine the structure of the most intimate of
relationships.”126
Since the state already imposes a contract onto marrying couples who have not made alternative arrangements, it is ironic
that many couples scoff at the suggestion that they enter into a prenuptial agreement. From a legal standpoint, prenuptial
agreements give couples more freedom and autonomy than they *904 would have if they simply relied on the state default
rules. It is undeniable, however, that many couples prefer to trust their future disputes to state resolution rather than endanger
the aura of trust surrounding the impending marriage with a prenuptial agreement.
B. The Historical Context of Marriage
Contemporary divorce statutes are the current manifestation of a long tradition of social and legal mechanisms that distribute
the assets acquired by a family unit at its dissolution.127 The conjunction of marriage and property has deep roots in AngloAmerican history.128 In Anglo-Saxon society, marriage had a distinctly contractual flavor. The groom purchased the wife’s
guardianship, and thus the right to marry her, with a price fixed according to her rank in society.129 The contract was
fulfilled, not by the religious ceremony, but by “the betrothal, the promise to marry and pay the weotuma,” or bride price.130
In the Middle Ages people viewed marriage as a contract that included a transfer of property.
In the early middle ages all that marriage implied in the eyes of the laity seems to have been a private contract between two
families concerning property exchange, which also provided some financial protection to the bride in case of the death of her
husband or desertion or divorce by him.131
By the fifteenth century, couples were entering into marital contracts that guaranteed the wife a portion of her husband’s
lands upon his death.132 England has enforced prenuptial contracts since at least the sixteenth century.133 The sixteenth and
seventeenth centuries saw a continued emphasis on the importance of financial considerations at marriage. Issues of property
and power dominated marriage negotiations.134 For people of property,135 a marriage featured *905 several stages. The first
stage was a written contract between the parents of the bride and groom indicating the financial arrangements. The second
consisted of the spousals, or contract, which was a formal exchange before witnesses of the promise to marry. The third stage
was the obtaining of the license, the fourth the wedding in church, and the fifth the sexual consummation.136
Except for landed heiresses who brought real property to the marriage, prenuptial contracts most frequently treated the twin
subjects of portion and jointure.137 The portion consisted of a substantial cash sum that the bride gave to the groom’s
family, while the jointure guaranteed the bride an annuity if she survived her husband. If the couple did not contract for the
jointure, upon the death of her husband the wife was entitled to her dower portion, “one-third of the [husband’s] lands and
tenements.”138 “Marriage, therefore, always involved a transfer of a significant amount of real or personal property from the
family of the bride to that of the groom, with a reverse commitment in the future of a significant proportion of annual
income.”139
Despite the formality of the English system for people of means, there still existed a remarkable degree of independence in
these marriages. Since the twelfth century, couples wishing to marry have needed neither their parents’ approval nor a
religious ceremony to cement the matrimonial bonds.140 It was also normal for the parties to begin their courtship
themselves, rather than rely on matchmakers or marriage brokers.141 In one historian’s words, “[t]he English, with their
separate ownership system of marital property, . . . with their abundant evidence of do-it-yourself marriages, . . . with their
apparent do-it-yourself system of separation, are, for the Middle Ages, an unusually individualistic people.”142
This principle that individuals should choose their own mates derives from canon law, which in turn has its antecedents in
early Germanic customs of free contract.143 It is ironic that the principle of marrying for love should derive from notions of
free contract, themselves the basis of modern prenuptial agreements. As a historical matter, prenuptials are not antithetical to
the concept of romantic love.
Indeed, much historical evidence points to the intermingling of love and property negotiations. Describing a collection of
medieval letters, one historian has noted that “[w]hat is . . . interesting is the number of cases where marriages which had
been preceded by extensive negotiations about property were also *906 obviously accompanied by depth of feeling.”144
Lawrence Stone, one of the preeminent historians in this field, describes a contemporary misconception about the early
modern period:
[T]hat there is a clear dichotomy between marriage for interest, meaning money, status or power, and marriage
for affect, meaning love, friendship or sexual attraction; and that the first is morally reprehensible. In practice
in the sixteenth century, no such distinction existed . . . .145
Historically, then, “marriage was both a psychological and an economic enterprise.”146 According to historians, at least,
negotiation of these two impulses can be successfully accomplished.
C. The Psychological Context of Marriage
Psychologists counsel against the personal obfuscation that can result from an overly romanticized picture of one’s partner.
Perhaps one of the clearest requirements for a successful romantic relationship is that it be based on a foundation of realism.
This is the ability and willingness to see our partner as he or she is, with shortcomings as well as virtues, rather than
attempting to carry on a romance with a fantasy.147
Negotiating a prenuptial agreement provides an opportunity to learn a great deal about one’s fiancé. “[N]egotiations in the
marital context are not likely to be either hostile or adversarial. Instead, they provide an ideal forum for partners to learn each
other’s goals and plans in a non-threatening, optimistic setting.”148
Similarly, psychologists stress the importance of communication in marriage.149 Signatories of prenuptial agreements attest
to the ability of these documents to encourage open communication. Gail Koff, a founder of the California law firm Jacoby
& Myers, herself entered into a prenuptial and found it to be a very constructive tool. “[I]t turned out to be a very positive
vehicle for communication, and I think it helped set some of the ground rules for our relationship.”150 In fact, for several
years Koff and her husband took the agreement with them on their yearly wedding anniversary vacation and reviewed the
terms of the contract.151
*907 Successful marriages also include a profound element of sharing.152 Although a seemingly selfish act, a prenuptial
agreement can promote this ideal of sharing and mutuality by guaranteeing that each party is treated identically upon divorce.
153
Fundamentally, prenuptial agreements can also promote honesty between two people. In a book advocating the use of these
contracts, the author argues that “it might seem that this book is an argument against romantic love, in favor of a calculating
affection. Not true. Just as knowledge tends to liberate rather than confine, love flowers in honesty.”154
However, there is no empirical evidence to support or deny the psychological benefits of prenuptials.155 While prenuptial
agreements have the potential to enhance a marriage in ways recognized by psychologists and marital counselors, the effect of
a prenuptial agreement on any particular couple, is highly individualized.
D. The Cultural Context of Marriage
Evolution and anthropology suggest that marriage is a phenomenon deeply rooted in the human psyche.156 However, many
cultures emphasize the financial aspects of marriage in ways foreign to Americans.
In most non-Western cultures around the world, some kind of transfer of money or goods occurs between the families of the
bride and groom. The most common form of transfer is from the husband’s family to that of the wife. In a sample of 565
societies, 47 percent are characterized by this kind of transaction, that is, by bride price or bride wealth.157
In these cultures, romance is not likely to be an important factor in partner selection. In India, for example, “[n]obody really
expects that adolescent crushes and affairs of the heart will lead through courtship to marriage, despite the celebration of
romance in the popular media. In fact, romance has only dubious legitimacy, and marriage, quite clearly, some other
function.”158 Thus, *908 in most societies romantic affection between the bride and groom is probably the least important
cultural factor leading to marriage.159
In contrast, American culture places a uniquely high premium on the romantic sentiments between two partners entering
marriage. “It is in the United States that perhaps the only, at any rate the most complete, demonstration of romantic love as
the prologue and theme of marriage has been staged.”160 It is arguably this romantic premise in American culture that most
militates against an American couple’s desire to use a prenuptial agreement.
Scholars continue to debate the historical source of romantic love. Some believe it has a long tradition in both English and
American history. “Companionate” marriages, those based on the affection of the parties, apparently became a widespread
phenomenon in England in the eighteenth century.161 Lawrence Stone has pointed out the twin rise of the companionate
marriage and the novel:
[R]omantic love and the romantic novel grew together after 1780, and the problem of cause and effect is one
that is impossible to resolve. All that can be said is that for the first time in history, romantic love became a
respectable motive for marriage among the propertied classes, and that at the same time there was a rising
flood of novels filling the shelves of the circulating libraries, devoted to the same theme.162
Other historians hypothesize an earlier beginning to the American tradition of romantic love. They argue that the Puritans
brought the concept of companionate marriage with them from England, and that it has remained an important element of
American society ever since.163 Still other scholars believe that the idea of marrying for romantic love arose in the nineteenth
century, a product of capitalism. Engels posited:
[Under capitalism] in ethical theory and in poetic description, nothing was more immutably established than
that every marriage is immoral which does not rest on mutual sexual love and really free agreement of
husband and wife. In short, the love marriage was proclaimed as a human right.164
Whatever its origin, romantic love has taken a central place in the American concept of marriage. In Stone’s words, “[l]ove
has now become the only respectable *909 and generally admitted motive for mate selection, whatever the secret reality may
be.”165
Emphasis on romantic love in family life, with its idealization of the concept of partnership, also stresses the collective good
over that of the individual. Although premarital agreements need not subordinate the collective good to that of the individual
participants, there is a widespread feeling that they do.
This sentiment is heightened by the recognition that economics, the basis for all prenuptial agreements, is not founded on a
romantic ideal. While romanticism stresses the uniqueness of each partner, economics derives from market theory, which is
based on the limits of individual uniqueness.166 Hence, an agreement that presumes that the parties are interchangeable
conflicts with the hyper-romantic sentiments surrounding marriage.
The most crucial factor in the social context surrounding prenuptial agreements is the ubiquity of divorce in the American
social fabric. “Critics like to point out that the country in which romantic love found its best home is also the country with
the highest divorce rate in the world.”167 Although the idea of signing a prenuptial agreement is distasteful to many
Americans, the country’s high divorce rate means that couples ignore the agreements at their peril.
IV. Encouraging the Enforceability of Prenuptial Agreements: The Independent Counsel Requirement
Despite the strong cultural basis for prenuptial agreements and the general shift in family law towards private contracting,
courts reviewing prenuptials face a dilemma familiar to any student of contracts: To what extent should the court
acknowledge and account for possible disparities in bargaining power when deciding whether to enforce a contract? As one
scholar asks,
Should the law’s response to premarital agreements be limited to eradicating disparate treatment of women by mandating
equal treatment of men and women as contracting parties? Or should the law’s response run the risk of paternalism by
recognizing that the achievement of gender equality requires more than equal treatment--it may demand protection of women
as a disadvantaged socioeconomic class?168
Courts may review prenuptial agreements for both procedural and substantive fairness.169 However, as prenuptials become
more common, courts are less willing to review the agreements for substantive fairness,170 instead limiting their review to
procedural inquiries concerning whether the agreement was entered into “freely, knowledgeably, and in good faith, without
the exertion of *910 duress or undue influence.”171 While the move away from substantive fairness review may be good
policy, courts have been inconsistent in protecting the parties’ right to procedural fairness.
In a seminal article, Robert Mnookin and Lewis Kornhauser examine the influence of legal rules on private bargaining and
negotiation.172 The authors assert that, although the state has an interest in ensuring fair bargaining between the parties, legal
rules affecting the parties’ relative negotiating power influence the outcome of the negotiations.173 Ideally, parties should be
able to negotiate private bargains that are preferable to court-ordered solutions;174 however, their ability to bargain effectively
is compromised by vague legal standards and unpredictable legal resolutions.175 The practice of reviewing prenuptials for
substantive fairness only exacerbates the legal inconsistencies that hamper parties’ ability to negotiate mutually beneficial
agreements. Indeed, courts have been forthright in declaring that substantive review of prenuptial agreements is a “difficult
and arbitrary” task.176 As a Wisconsin court recently noted, “[r]arely, we suspect, will application of [the test for substantive
fairness] lead to a clearly indicated resolution.”177 Given this lack of clarity and the potential for inconsistency, courts have
been increasingly unwilling to review prenuptials for substantive fairness.
However, reviewing prenuptial agreements for procedural fairness may lead to equally inconsistent and unsatisfying results.
When evaluating prenuptial agreements, courts often focus on the fairness of the bargaining process that produced the
agreement. To this end, courts enforce with greatest consistency the requirement of full and fair disclosure during the
bargaining process of each parties’ financial holdings.178 This requirement assumes that disclosure of financial holdings is
essential for effective bargaining.179 But while full disclosure may be one element of effective bargaining, disclosure alone is
no guarantee of a fair negotiation process. Courts’ reliance on disclosure as an *911 indicia of fairness fails to consider the
profound bargaining disparity that often exists between parties entering into a prenuptial agreement.
Parties signing prenuptial agreements rarely enjoy equal financial or other bargaining resources. As one court noted, “candor
compels us to raise to a conscious level the fact that . . . prenuptial agreements will almost always be entered into between
people with property or an income potential to protect on one side and people who are impecunious on the other.”180 Not
surprisingly, this disparity often has a distinctly gendered flavor.
Because women are often financially or emotionally disadvantaged in the bargaining process, they contest prenuptials at
much greater rates than men.181 For example, among remarried couples, who are most likely to sign prenuptials, “there may
be a great age disparity, with the husband considerably older than the wife.”182 Regardless of age, empirical data indicate that
women generally fare worse than men in economic negotiations.183 As one scholar argues, women may be disadvantaged in
negotiations by their distaste for disagreement and their comparatively stronger “taste for cooperation.”184
This propensity may, in turn, create “hostages”: persons or things--including the relationship itself--which are valued more
by one party and thus can be used as leverage by the opposing party. For example, a woman who values a relationship more
than her fiance is less likely to make the “credible threats” vital to effective bargaining.185
Bargaining a prenuptial contract is not like bargaining a contract for a bushel of wheat. The bargaining position of the
woman is totally out of line.
The woman is usually more emotionally involved and reluctant to question the man’s motives or purposes. She wants to get
married and doesn’t contemplate the agreement being tested in a divorce court. But if it is, she stands to lose.186
*912 This theory provides a powerful explanation of the dynamics surrounding prenuptial agreements. It also explains why
so many women agree to sign premarital contracts on the eve of their wedding.187
Wealth, age, or emotional bargaining alone cannot preclude the drafting of a contract. But courts’ cavalier treatment of the
inequities in prenuptial negotiations only heightens the unfairness of both the bargaining process and the results. Courts
often fail to acknowledge the impact of unequal bargaining power on the provisions of prenuptial agreements by emphasizing
the contract itself rather than the legal rights the parties have forgone by signing it.
In a recent case, a widow contested the validity of a prenuptial agreement that was signed only hours before the wedding, that
she had neither read nor reviewed with independent counsel, and that denied her any rights to her husband’s estate.188 In
upholding the agreement, the court unsympathetically reasoned,
In our view, respondent has established nothing more than her own dereliction in failing to acquaint herself with the
provisions of the agreement and to obtain the benefit of independent legal counsel. Although this dereliction may have
caused her to be ignorant of the precise terms of the agreement, . . . absent fraud or other misconduct, parties are bound by
their signatures.189
The court was not concerned that the husband had been a “wealthy executive,” while the wife was “unemployed and brought
no assets to the marriage.”190 The central problem here is not the disparity in the parties’ respective wealth, but rather the
court’s refusal to acknowledge that the wife had been disadvantaged in the bargaining process, had received no legal advice,
and therefore had unwittingly signed away her rights to the marital estate. Although these bargaining practices might be
acceptable for arm’s-length transactions, they pose serious difficulties in the fiduciary context of prenuptial negotiations.191
In another case, a pregnant eighteen year-old woman signed a prenuptial agreement that she did not understand three days
before her wedding which nullified her marital rights to her husband’s estate upon his death.192 Her husband’s lawyer neither
explained the agreement to her nor advised her of her *913 right to independent legal counsel.193 When her husband drowned
the following year, the wife contested the validity of the prenuptial. At trial, the husband’s lawyer justified his failure to
inform the wife of her right to independent counsel: “[M]y basic experience with people coming into my office, is that
people who aren’t mentally retarded generally know that they have a right to see a lawyer if they want to.”194 The court
invalidated the prenuptial because the agreement was “overreaching” and because the husband’s attorney had advised the wife
to sign the agreement without informing her of her right to independent counsel.195 However, in striking down the
prenuptial, the court merely relied on the specific facts of the case, neither following nor establishing a clear legal rule.
Such legal ambiguities give rise to real fears about parties unknowingly forfeiting valuable legal rights. These bargains
cannot be considered fair and do not even seem to pass the test of procedural fairness that requires the parties to enter into
agreements “knowledgeably.” In order to minimize inconsistencies and promote procedural fairness, courts need to define the
elements that comprise equitable negotiation, such as what it means to enter a contract “knowledgeably.” One way to
facilitate this goal is to require each party entering into a prenuptial agreement to consult with independent counsel.
At present, no state makes consultation with independent counsel a prerequisite for the enforcement of prenuptial agreements.
196 Some states recognize the value of legal advice by requiring that each party have the opportunity to consult with a lawyer
prior to signing the agreement, even if they reject that opportunity.197 Other states consider the opportunity to consult with
independent counsel as one of several factors in evaluating whether a party knowledgeably entered into an agreement.198 Still
others require that if the agreement’s provisions with respect to one of the parties are not “fair and reasonable,” then the
agreement will not be upheld unless the party disadvantaged had independent counsel and acted with “full knowledge of her
rights.”199 Occasionally a state will require the proponent of an agreement to prove the fairness of the agreement if he or she
“played the dominant role in the relationship.”200 In *914 such situations, the retention of “independent competent counsel
is a prerequisite” for showing that the weaker party voluntarily signed the agreement.201
Clearly, even these “rules” rely on subjective evaluations, such as what conditions comprise “fair and reasonable” negotiation
and what actions reflect the assumption of a “dominant role.” The use of these vague standards may have a devastating
impact on women (who are most often the focus of evaluation) and on the clarity of the laws governing prenuptial
agreements. For example, in a recent case upholding a prenuptial agreement, a dissenting judge argued that a wife whose
“education and experience did not provide her with a background in business and investment affairs” could neither evaluate
her husband’s financial disclosure nor understand the prenuptial agreement on her own.202 In the judge’s paternalistic
assessment, “[s]he did not complete high school. She has never made more than $5,000 a year.”203
These kinds of arguments do a disservice to the women they describe and to the clarity of prenuptial law. Judicial
evaluations of what constitutes “knowledgeable,” “fair,” and “adequate” disclosure are too value-laden to provide guidance to
couples negotiating to protect their rights and seeking to draft a legally enforceable contract.
Rather than rely on subjective judicial judgments, a clear rule should be established to ensure that couples knowledgeably
enter into a prenuptial agreement. This rule should specify that prenuptial agreements are unenforceable unless the party
forfeiting his or her rights is represented by independent counsel, has received full disclosure from the other party, and is
aware of any material circumstances that could affect the provisions of the agreement.204 Additionally, if one party cannot
afford legal representation, the other party must pay for the counsel of the less wealthy party’s choice.205 If one party chooses
to waive the right to counsel, counsel for the other party must explain the rights being waived, and both the explanation and
the waiver should be documented in writing. Prenuptial agreements that satisfy the above requirements would be immune
from legal challenge by either party.206 This proposal *915 would strengthen, not weaken, parties’ freedom to contract, with
all its associated benefits. By providing an easily understandable safe harbor, this rule gives couples the security of knowing
that, if each is represented by counsel, their prenuptial agreement will be upheld.
The importance of retaining independent legal counsel has not escaped courts’ attention.207 Nevertheless, no court has
required parties to consult independent counsel before signing a prenuptial. Some courts reason that such a requirement
would depart too far from basic contract law.208 This argument, however, fails to consider the common law contract
requirement that parties with a “special relationship,” or who “stand in a relationship of trust and confidence to one another,
“must provide” full disclosure and knowledge of the benefits of the bargain and what is being bargained away.”209
Other courts view requiring independent counsel as “constitut[ing] a paternalistic and unwarranted interference with the
parties’ freedom to enter contracts.”210 This position ignores the reality that judicial review of prenuptial agreements and the
attendant evaluation of each party’s educational and financial background is already a paternalistic exercise. Instead, a rule
that conditions the enforceability of prenuptial agreements on the retention of independent counsel would ensure greater
freedom of contract than the existing rules of procedural and substantive review provide.
Some commentators assert that lawyers have a proven record of making family negotiations more difficult and complicated
than the parties themselves would have made them.211 Although advising parties of their rights in advance might complicate
the bargaining process, it prevents the even more burdensome process of litigating the validity of a prenuptial agreement.
Furthermore, if one of the parties does not wish to marry after the proposed agreement is explained, that realization is likely
a divorce prevented. In addition, lawyers can perform a variety of useful functions; they can “make negotiations more
rational, minimize the number of disputes, discover outcomes preferable to both parties, increase *916 the opportunities for
resolution out of court,” and ensure that the agreements are enforceable after they are signed.212
On balance, this rule would increase both the enforceability and fairness of prenuptial agreements by establishing a clear and
fair test. Courts would no longer need to conduct extensive subjective evaluations of each party’s background, education, and
financial status to assess the procedural or substantive fairness of the agreement. The clarity of the test will avoid one court’s
prediction that “debate will continue to rage concerning the proper function of reviewing courts in resolving the extent to
which the special incidents of the premarital relationship should alter traditional contract analysis.”213 The early and
equitable involvement of lawyers in negotiating prenuptials would increase the likelihood that the resulting agreements are
fair by ensuring that both parties understand their legal rights and by helping them avoid common pitfalls in the negotiating
process.
Conclusion
Prenuptial agreements have a long history in the Anglo-American tradition. Their continued use reflects a reality that many
other cultures unapologetically acknowledge: Marriage has significant consequences for an individual’s wealth and property.
Many couples may not realize that if they do not write their own prenuptial agreement, the state will provide one for them,
and they will have no input in the terms that the state and courts enforce. Nevertheless, prenuptial agreements, with their
emphasis on individual security and financial concerns, will always challenge the American ideal that romance is the only
legitimate basis for marriage. Couples undoubtedly will continue to debate the merits of signing prenuptial agreements;
hopefully many will objectively discuss the benefits and drawbacks in a way that allows them to determine whether or not
the contractual approach is right for them. If they are able to look beyond the stereotypes, they might well be pleasantly
surprised.
In his book The Love Contract: Handbook for a Liberated Marriage, Robert Burger provides his readers with a sample
prenuptial agreement and adds, “[t] his is the love contract. It can be helpful; it is not a panacea. It can help love flower and
accordingly help love partners grow to their maturity.”214 Prenuptials do not deserve their reputation as the bastion of greed
and selfishness in marriage. They can offer more than protection against scheming second wives or social climbing husbands.
Rather, prenuptial agreements can promote greater love, communication, and, ultimately, happiness in marriage. A legal
framework incorporating an independent counsel requirement would promote fairness and full knowledge by both parties,
which increases the potential for prenuptials to be a positive, relationship-enhancing experience.
Footnotes
Third-year law student, Stanford Law School. I am indebted to Professors Deborah Rhode and Janet Halley for their
a
critical insights and encouragement during the writing of this piece. Special thanks to the members of the Spring 1996
Gender Law & Public Policy seminar. Finally, I would like to thank the staff and editors of the Stanford Law Review,
especially Laura Bradford, Jessica Gonzalez, Dan McBride, and Gail Mosse.
1
Jonathan L. Alpert, Gilbert’s Law, Case & Com., Nov.-Dec. 1970, at 44, 45 (compiling legal aphorisms from the works
of William S. Gilbert, lyricist of the song-writing team Gilbert & Sulllivan).
2
A. Marsh, The Confession of the New Married Couple, reprinted in The Ten Pleasures of Marriage 225 (John Harvey ed.,
The Navarre Soc’y 1950) (1683) (attributed to Aphra Behn).
3
Stephanie H. Dahl, Prenuptial Agreement: Is It for You?, Mod. Bride, Dec. 1990-Jan. 1991, at 326, 326. Throughout this
note, the terms “prenuptial” and “prenuptial agreement” are used interchangeably.
4
Id. at 468.
5
See, e.g., Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 Yale J.L. & Feminism 229 (1994).
6
See, e.g., Laura Castaneda, Inside Story About Prenuptial Agreements: Even If You’re Not Rich, or Famous, It Can Pay
to Have One, S.F. Chron., Nov. 4, 1996, at E1.
7
See Gary Belsky, Living by the Rules, Money, May 1996, at 100; Kathleen Murray, Odd Couples and Their Odder
Divorce Settlements, Cosmopolitan, May 1996, at 222.
8
However, prenuptials that regulate the marriage itself are usually unenforceable in court. See text accompanying notes
101-103 infra.
9
See Belsky, supra note 7, at 100; Charles Laurence, Couple Find Fame in Fine Print, Chi. Sun-Times, Feb. 18, 1996, at
32.
10
See Belsky, supra note 7, at 101 (listing highlights of the LeGalleys’ prenuptial agreement).
11
Laurence, supra note 9, at 32. Rex LeGalley has divorced twice and Teresa was “briefly and disastrously” married in her
early 20’s. See id.
12
Id.
13
Id. (quoting New York matrimonial lawyer Raoul Felder).
14
See id.
15
See Judith T. Younger, Perspectives on Antenuptial Agreements: An Update, 8 J. Am. Acad. Matrimonial Law. 1, 8
(1992) (discussing the subjects of prenuptial agreements).
16
See Charles Cahn II, Estate Planning to Avoid Complications of Remarriage, 19 Est. Plan. 268 (1992) (discussing
survivorship rights vested by the state and how prenuptial agreements can alter those rights); Albert B. Crenshaw, To
Love, Honor and Protect Your Assets: Older Couples Embrace Prenuptial Agreements, Wash. Post, Apr. 27, 1993,
(Health), at 12-13 (noting that prenuptials can allow widows to “get around” state inheritance laws).
17
See Bart A. Basi & Ed Bodnam, Premarital Agreements: Retirement Plan Rules Supersede Premarital Contract, 24 Tax’n
for Law. 226 (1996) (“[A]n enforceable premarital agreement can be an important element in estate planning, especially
for parties that have children from a prior marriage.”); Money Talks Aid 2nd Marriages: Discussing Plans on Insurance,
Wills and Housing Can Make for a Happier Household, Orlando Sentinel, Sept. 10, 1995, at H2 (“Many financial
planners recommend a prenuptial agreement and separate consultations with estate-planning experts for couples who
remarry.”).
18
See Recent Developments, Family Law--Prenuptial Agreements-- Pennsylvania Supreme Court Rejects Substantive
Review of Prenuptial Agreements: Stone v. Simeone, 104 Harv. L. Rev. 1399, 1399 n.3 (1991) (discussing the various
purposes of different types of prenuptial agreements) [hereinafter Recent Developments]; Andrew Leckey, Married or
Divorced: Watch Finances, St. Louis Post-Dispatch, May 17, 1996, at 5C (quoting attorney Barry Schatz as saying,
“Defining what constitutes marital and nonmarital property is one of the most important benefits of a prenuptial
agreement.”).
19
See Karen S. Peterson, Money Sense From Start Is Important in Marriage, Chi. Sun-Times, Feb. 23, 1995, § 2, at 39
(stating that prenuptials “help you figure out the way you will go”).
20
See Crenshaw, supra note 16, at 13.
21
See Pam Slater, Prelude to Partnership, Sacramento Bee, June 13, 1996, at C1.
22
See Belsky, supra note 7, at 102 (describing the rise in the use of prenuptial agreements from less than 1% two decades
ago).
23
See Emy Sigler, Case Comment, Elgar v. Probate Appeal: The Probate Court’s Implied Powers to Construe and to
Enforce Pre-Nuptial Agreements, 9 Conn. Prob. L.J. 145, 145 (1994).
24
Cecile C. Weich, Love on the Dotted Line: Craft a Prenuptial Agreement Carefully to Withstand Any Future Challenges,
A.B.A. J., Oct. 1994, at 50.
25
See Crenshaw, supra note 16 (noting that increasing divorce rates have led couples to plan for this possibility);
Allison A. Page, Note, Premarital Consent to Waiver of Spousal Pension Benefits: A Proposal to Equalize Prenuptial “I
Do” and Postnuptial “I Do,” 47 Wash. U. J. Urb. & Contemp. L. 157, 162 (1995) (noting that the increasing frequency
of second marriages has spurred couples to write prenuptials).
26
See Arthur J. Norton & Louisa F. Miller, U.S. Dep’t. of Commerce, Marriage, Divorce, and Remarriage in the 1990’s, at 5
(1992) (citing U.S. Nat’l Center for Health Stat., Pub. Health Service, DHHS Pub. No. (PHS) 91-1120, Advance Report of
Final Marriage Statistics, 1988 (1991)).
27
See Ilyce R. Glink, Nuptial Saga: ‘48 Hours’ of Marriage, ‘For Better, For Worse,’ Chi. Trib., May 19, 1991, § 6
(Womanews), at 2.
28
Norton & Miller, supra note 26, at 12.
29
Mary Ann Glendon, The New Marriage and the New Property, in Marriage and Cohabitation in Contemporary Societies:
Areas of Legal, Social and Ethical Change 59, 63 (John M. Eekelaar & Sanford N. Fetz eds., 1980).
30
See Younger, supra note 15, at 12.
31
See Norton & Miller, supranote 26, at 3 (“The distribution of the percentage of women who had ever married ... clearly
shows an aggregate movement away from early age at first marriage.”).
32
See text accompanying notes 81-94 infra.
33
Gitta Morris, Taking a Legal Approach to Marriage, N.Y. Times, Feb. 10, 1991, § 12 (Conn. Wkly.), at 3 (interviewing
lawyer Louis I. Parley, co-author of Alexander Lindey & Louis I. Parley, Lindey on Separation Agreements and
Antenuptial Contracts (1990)).
34
See Belsky, supra note 7, at 102 (describing how and when to draw up an “airtight prenup”).
35
See Weich, supra note 24, at 50 (describing the use of prenuptials as an attempt to avoid antagonistic divorce
proceedings).
36
See Pamela E. George, Can a Woman of the 90’s Have It All? Or, Is She Once Again Faced with That Age Old
Question--“What’s a Girl to Do?,” 8 J. Am. Acad. Matrimonial Law. 73, 75-76 (1992) (“Some perceive that a premarital
agreement will quell any possibility of a bitter divorce because there will be nothing over which to fight.”).
37
See Judith Rehak, Prenuptial Accords: Walking Down the Aisle and Reading Fine Print, Int’l Herald Trib., Feb. 25,
1995, at 14 (noting that parents of an heir or heiress often press for a prenuptial agreement); Anita Sharpe, Prenuptial
Pacts Shield Businesses from an Heir’s Ex, Wall St. J., June 19, 1996, at B1 (reporting that “ ‘it’s the rare exception’
when wealthy business owners don’t require prenups from their sons and daughters”) (quoting New York attorney
Raoul Felder).
38
See In Praise of Prenuptial Contracts, Inv. Daily, June 7, 1991, at 8 (defining “people of wealth” as those with assets
over $500,000) [hereinafter In Praise]; Peterson, supra note 19, at 39 (encouraging prenuptial agreements for couples
with “substantial assets”).
39
See Gail Koff, Love and the Law 85 (1989) (stating that with the “rise in two-income families, ... there is an interest for
some to protect each spouse’s individual property”).
40
See Joe Catalano, Sharing Home Buying Deeds: Spell Things Out Clearly When Purchasing with Friends, Newsday,
May 19, 1995, at D7 (“[P]artners purchasing property together should ... draw up a formal agreement, spelling out such
things as how much interest each has in the property, who pays what expenses connected with the house and what
happens if one partner is unable to pay their share.”).
41
See Belsky, supra note 7, at 102.
42
See Making Cents, When Your Fiancé Has Lots of Debt, L.A. Times, Mar. 17, 1996, at D2 (“Financial analysts say you
would be wise to draw up a prenuptial agreement keeping your financial lives separate, at least until you decide you
want to pay off your fiancé’s past debts or they become uncollectible.”).
43
See Kirk Johnson, Gay Divorce: Few Markers in This Realm, N.Y. Times, Aug. 12, 1994, at A20.
44
See Belsky, supra note 7, at 102; In Praise, supra note 38, at 8.
45
See In Praise, supra note 38, at 8.
46
Andrew J. Kyreakakis, Antenuptial Law in New Jersey, 24 Seton Hall L. Rev. 254, 254 (1993).
47
Franklin I. Miroff & Andrew C. Mallor, When a Simple ‘I Do’ Won’t Do: How to Draft a Premarital Agreement--And
Survive, 13 Fam. Advoc., Spring 1991, at 10, 14.
48
Edward L. Winer, Introduction to Premarital and Marital Contracts: A Lawyer’s Guide to Drafting and Negotiating
Enforceable Marital and Cohabitation Agreements at xiii, xiii (Edward L. Winer & Lewis Becker eds., 1993)
[[[hereinafter Premarital and Marital Contracts].
49
See Ralph Underwager & Hollida Wakefield, Psychological Considerations in Negotiating Premarital Contracts, in
Premarital and Marital Contracts, supra note 48, at 217, 218 (noting that prenuptial agreements undermine the “trust,
hope, and faith the parties have in each other”).
50
See Mary Rowland, Linking Love and Money, N.Y. Times, Feb. 25, 1990, § 3, at 17 (“The biggest challenge in creating
a sound financial arrangement is not whether it will stand up in court .... Rather, it is mixing money and love without
dousing the romance.”).
51
See Lenore J. Weitzman, The Marriage Contract: Spouses, Lovers, and the Law 243 (1981) (“[A]pproaching marriage as
a bargained-for relationship undermines the cooperative goals of marriage.”).
52
See Underwager & Wakefield, supra note 49, at 218 (“A marriage contract may glorify independence and self interest.
This will undermine the sense of partnership and equality that is necessary in a successful marriage.”).
53
Jonathan P. Decker, Wedding Checklist: Couples Add Premarital Counseling, Christian Sci. Monitor, May 2, 1996, at
12.
54
Id. (quoting Rev. James Terrell of Washington’s Second Baptist Church).
55
See Slater, supra note 21, at C1.
56
See text accompanying notes 172-187 infra.
57
See Charles W. Gamble, The Antenuptial Contract, 26 U. Miami L. Rev. 692, 724 (1972) (noting that “cases in which
the husband contests the antenuptial contract are practically nonexistent”). But see, e.g., Gould v. Rafaeli, 822 S.W.2d
494 (Mo. Ct. App. 1991) (husband contesting validity of a prenuptial).
58
Weitzman, supra note 51, at 241.
59
See text accompanying notes 204-213 infra.
60
Underwager & Wakefield, supra note 49, at 219 (quoting New York attorney Jacalyn Barnett).
61
Rehak, supra note 37, at 14 (quoting family law lawyer William Zabel).
62
See Judith Schoolman, Advice for Newlyweds: Keep Some Finances Single, Reuter’s Bus. Rep., Feb. 25, 1994, available
in LEXIS, News Library, Curnws File (noting that “57 percent of divorced couples cited disputes over money as
contributing to their breakup”).
63
Bill Rumbler, Money to Have and to Hold: Pair Should Sort Out Financial Situation Before the Wedding, Chi. SunTimes, Sep. 11, 1994, at 13.
64
See Morris, supra note 33, at 3.
65
Premarital Agreement Basic Form: Anticipating the Needs of the Monied Spouse, 18 Fam. Advoc., Summer 1995, at 8,
9.
66
See Underwager & Wakefield, supra note 49, at 219.
67
Id.
68
Crenshaw, supra note 16, at 12 (quoting attorney Glenda A. Fowler) (alterations in original).
69
See Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of
Divorce at the Time of Marriage, 17 Law & Hum. Behav. 439, 443 (1993).
70
Weich, supra note 24, at 50.
71
See, e.g., Brooks v. Brooks, 733 P.2d 1044, 1050 (Alaska 1987) (upholding a prenuptial agreement and asserting that
“people with previous ‘bad luck’ with domestic life may not be willing to risk marriage again without the ability to
safeguard their financial interests”); Gant v. Gant, 329 S.E.2d 106, 113 (W. Va. 1985) (upholding a prenuptial
agreement and asserting that a prenuptial may “encourage rather than discourage marriage”).
72
See Kaylah Campos Zelig, Comment, Putting Responsibility Back into Marriage: Making a Case for Mandatory
Prenuptials, 64 U. Colo. L. Rev. 1223, 1244 (1993) (“Mandatory contracts will allow divorce law to move forward,
recognizing the plurality of marriages that exists today and better providing for partners at dissolution.”).
73
Id.
74
See text accompanying notes 44-47 supra.
75
Judy Glass, Prenuptial Pacts Increasing, N.Y. Times, Mar. 4, 1990, § 12 (Long Island Wkly.), at 4 (quoting Huntington,
New York, matrimonial lawyer Peter Rubinton).
76
Younger, supra note 15, at 1-2.
77
See Brod, supra note 5, at 255.
78
See Gamble, supra note 57, at 704-05 (examining the courts’ assertions for invoking the public policy rule when
voiding prenuptial agreements).
79
Brooks v. Brooks, 733 P.2d 1044, 1048 (Alaska 1987) (footnotes and citations omitted).
80
Stilley v. Folger, 14 Ohio 610, 613 (1846).
81
233 So. 2d 381 (Fla. 1970).
82
Id. at 385.
83
See Brod, supra note 5, at 253 (noting that “lawmakers in many states began making premarital agreements more
readily enforceable ... while retaining the previously established common law principles that were used to protect
women from unfair premarital agreements”).
84
Potter v. Collin, 321 So. 2d 128, 132 (Fla. Dist. Ct. App. 1975) (quoting Gamble, supra note 57, at 719).
85
See Brod, supra note 5, at 256-59.
86
Id. at 256.
87
See Phillip Gainsley & Susan C. Rhode, The Role of Substantive Fairness in Premarital Agreements, in Premarital and
Marital Contracts, supra note 48, at 51, 55 (describing factors considered by the courts).
88
Sigler, supra note 23, at 148 (footnotes omitted).
89
See Younger, supra note 15, at 6.
90
See Brod, supra note 5, at 255 (noting that “states have an overriding interest in protecting the welfare of children”).
91
See id. (noting that “states currently implement the policy of protecting marriage by refusing to enforce premarital
agreements that promote divorce”); see also Davis v. Davis, No. FA 9501448075, 1996 WL 456335 (Conn. Super. Ct.
July 29, 1996) (finding agreement unenforceable because it gave husband incentive to divorce because his wife would
receive $25,000 for each year the couple lived together).
92
See Younger, supra note 15, at 28 & n.138 (citing cases in Florida, New Jersey, Ohio, Washington, and Wisconsin).
93
See George, supra note 36, at 79 & n.26 (citing cases in Illinois, North Carolina, and Texas).
94
See Gamble, supra note 57, at 729 (describing this aspect as courts’ “chief concern” when reviewing prenuptial
agreements).
95
9B U.L.A. 69 (1996).
96
See id. (listing twenty-eight states which have adopted the UPAA as of July 1, 1996).
97
See Barbara Ann Atwood, Ten Years Later: Lingering Concerns About the Uniform Premarital Agreement Act, 19 J.
Legis. 127, 146 (1993) (“[T]he drafters of the UPAA seem to have so constrained the available challenges to
antenuptial agreements that such agreements would survive in circumstances that the ordinary commercial contract
would not.”); Brod, supra note 5, at 275-276 (“The greatest failure of the UPAA is Section 6” which treats
enforceability.).
98
See Atwood, supra note 97, at 145-46 (contrasting the UPAA’s mandatory linkage of nondisclosure and
unconscionability to the common law’s acceptance of either as an independent basis for voiding prenuptial
agreements).
99
Id. at 135.
100
See Ralph Warner & Toni Ihara, California Marriage and Divorce Law 36-39 (7th ed. 1985) (listing issues which should
be considered when drawing up a personal marriage contract).
101
Younger, supra note 15, at 15.
102
These examples come from actual prenuptial agreements. See Rehak, supra note 37, at 14 (describing some of the
“wackier” terms of prenuptial agreements).
103
Laura P. Graham, Comment, The Uniform Premarital Agreement Act and Modern Social Policy: The Enforceability of
Premarital Agreements Regulating the Ongoing Marriage, 28 Wake Forest L. Rev. 1037, 1045 (1993) (discussing the
holding in Koch v. Koch, 232 A.2d 157 (N.J. Super. Ct. App. 1967)).
104
Baker & Emery, supra note 69, at 443.
105
See id. at 448.
106
Id. at 449.
107
The classic work on this topic is Weitzman, supra note 51.
108
Id. at xv.
109
Maynard v. Hill, 125 U.S. 190, 213 (1888) (quoting Noel v. Ewing, 9 Ind. 37, 50 (1857)).
110
Cal. Civ. Code § 4100 (Deering 1996).
111
American Bar Association, Your Legal Guide to Marriage and Other Relationships 15-16 (1989).
112
Id. at 9.
113
Atwood, supra note 97, at 131-32.
114
See Brod, supra note 5, at 236 (noting that “every common law state has enacted an ‘equitable distribution’ statute
governing the distribution of property at divorce” that recognizes marriage as an economic partnership).
115
See text accompanying notes 104-106 supra.
116
See Baker & Emery, supra note 69, at 441 (describing the accuracy of survey responses to questions concerning
custody, alimony, child support, and property settlement).
117
Warner & Ihara, supra note 100, at 35.
118
Roger A. Arnold, Marriage, Divorce, and Property Rights: A Natural Rights Framework, in The American Family and the
State 195, 204 (Joseph R. Peden & Fred R. Glahe eds., 1986).
119
See Weitzman, supra note 51, at 153-54 (arguing that prenuptial agreements are necessary “because the traditional
marriage contract completely ignores so many real needs by assuming that all marriages are first marriages”).
120
See id.
121
See generally Jana B. Singer, The Privatization of Family Law, 1992 Wis. L. Rev. 1443 (1992) (discussing the
transformation in family law from public to private ordering of behavior).
122
Cf. Matthew P. Bergman, Status, Contract, and History: A Dialectical View, 13 Cardozo L. Rev. 171, 172 (1991)
(“During periods of social change, status ... will give way to contract.”).
123
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
124
Singer, supra note 121, at 1511-12. Singer attributes this evolution to the rising influence of the law and economics
movement, which characterizes people as rational maximizers: “[S]everal influential social science theories challenged
the notion that people ... behave differently in family relationship than they do in more overtly economic settings.” Id.
at 1523.
125
See Weitzman, supra note 51, at 227 (describing prenuptial agreements as according better with contemporary social
reality than the sex-based legacy of traditional marriage law).
126
Recent Developments, supra note 18, at 1402 n.31.
127
See, e.g., Warner & Ihara, supra note 100, at 19 (discussing the history of the community property system).
128
Although this section focuses on the impact of English history on American family law, many other marriage systems
have obviously influenced the concept of marriage in American culture. See, e.g., William A. Reppy, Jr. & Cynthia A.
Samuel, Community Property in the United States at iii (3d ed. 1991) (discussing community property regimes
derived from Spanish-Mexican and Spanish-French colonial law). However, a complete exploration of these influences
is beyond the scope of this note.
129
See Lloyd Bonfield, Property Settlements on Marriage in England from the Anglo-Saxons to the Mid-Eighteenth
Century, in Marriage, Property, and Succession 287, 292-93 (Lloyd Bonfield ed., 1992).
130
See id. at 293.
131
Lawrence Stone, The Family, Sex and Marriage in England 1500-1800, at 30-31 (1977).
132
See Bonfield, supra note 129, at 305-08. Bonfield notes that fathers who wished to protect their daughters
prospectively would “insist upon an agreement regarding the widow’s maintenance prior to marriage.” Id. at 305.
133
See Younger, supra note 15, at 2 (noting that “[b]oth chancery and common law courts were then passing on their
validity”).
134
See Stone, supra note 131, at 87.
135
Because this discussion focuses on property concerns, it does not examine the historical customs of the “common
people.” Although there are few historical records, the common people presumably chose a mate based on love rather
than on financial situations. See Alan Macfarlane, Marriage and Love in England: Modes of Reproduction 1300-1840,
at 133 (1986).
136
See Stone, supra note 131, at 31 (describing the steps of sixteenth-century marriage).
137
See id. at 88.
138
Bonfield, supra note 129, at 288.
139
Stone, supra note 131, at 88.
140
See Macfarlane, supra note 135, at 125 (citing George Elliot Howard, 1 A History of Matrimonial Institutions 339
(1904)).
141
See id. at 294.
142
Charles Donahue, Jr., English and French Marriage Cases in the Later Middle Ages: Might the Differences Be Explained
by Differences in the Property Systems?, in Marriage, Property, and Succession, supra note 129, at 339, 362.
143
See Macfarlane, supra note 135, at 125-26.
144
Id. at 198.
145
Stone, supra note 131, at 86. Stone later argues, however, that “romantic and sexual love ... played little or no part in
the daily lives of men and women of the late seventeenth and eighteenth centuries.” Id. at 272.
146
Macfarlane, supra note 135, at 165.
147
Nathaniel Branden, The Psychology of Romantic Love: What Love Is, Why Love Is Born, Why It Sometimes Grows,
Why It Sometimes Dies 131 (1980).
148
Weitzman, supra note 51, at 239.
149
See Patricia Noller, Judith A. Feeney, Denise Bonnell & Victor J. Callan, A Longitudinal Study of Conflict in Early
Marriage, 11 J. Soc. & Pers. Relationships 233, 249-50 (1994) (reporting findings that “[s]pouses high in relationship
satisfaction ... let their partner know about their grievances, were involved in mutual discussion of issues and were
consistent in their use of positive conflict resolution strategies”).
150
Koff, supra note 39, at 89.
151
See id.
152
See Branden, supra note 147, at 172 (“There is the sense of an alliance: Whoever harms my partner harms me.... [T]he
protection and preservation of the relationship exists on my highest level of priorities ....”).
153
See Edward L. Winer, Practical Considerations for Premarital Agreements, in Premarital and Marital Contracts, supra
note 48, at 67, 71 (suggesting that equal protection will result if neither spouse is allowed “to share in premarital
assets of the other in the event of divorce”).
154
Robert E. Burger, The Love Contract: Handbook for a Liberated Marriage at viii (1973).
155
See Underwager & Wakefield, supra note 49, at 217.
156
See Gwen J. Broude, Marriage, Family, and Relationships: A Cross-Cultural Encyclopedia 189 (1994).
157
Id. at 40.
158
Patricia Uberoi, Introduction to Family, Kinship and Marriage in India 1, 2 (Patricia Uberoi ed., 1993).
The idea that marriage is based on the personal feelings or inclination of those marrying may strike us as self-evident.
Yet the majority of societies would take the view that marriage is far too important a matter to be left to the individuals
concerned and that ‘feeling’, ‘emotion’, ‘love’, between the prospective partners are largely irrelevant.
Mcfarlane, supra note 135, at 119.
159
See Broude, supra note 156, at 214-18 (describing criteria for choosing marriage partners).
160
Ernest W. Burgess & Harvey J. Locke, The Family: From Institution to Companionship 319 (1953)); see also
Macfarlane, supra note 135, at 120 (“[F] ew people are so given to romantic love as are Americans. In our
individualistic sentimentalism we exalt the ideal of marriage based on love-- that mysterious psychophysiological
reaction.”) (quoting E. Adamson Hoebel, Man in the Primitive World 214 (1949)).
161
See Stone, supra note 131, at 273.
162
Id. at 284.
163
See G. Robina Quale, A History of Marriage Systems 286 (1988).
164
Frederick Engels, The Origin of the Family, Private Property and the State 144 (Alec West trans., 1990); see also Paul
Horton & Lawrence Alexander, Freedom of Contract and the Family: A Skeptical Appraisal, in The American Family
and the State, supra note 118, at 229, 250 (“The ‘romantic love’ concept of Marriage ... became an ideal sometime in the
western civilization’s nineteenth century and has stuck around ever since.”).
165
Stone, supra note 131, at 680.
166
See Shoshana Grossbard-Shechtman, On the Economics of Marriage: A Theory of Marriage, Labor and Divorce 1-2
(1993).
167
Branden, supra note 147, at 49.
168
Brod, supra note 5, at 232.
169
See text accompanying notes 85-87 supra.
170
See In re Marriage of Spiegel 553 N.W.2d 309, 314-15 (Iowa 1996) (upholding a prenuptial while admitting the
difficulty inherent in evaluating the agreements for substantive fairness).
171
Randolph v. Randolph, No. 03S-01-9510-CV-00119, 1996 WL 506715, at *3 (Tenn. Sept. 9, 1996) (holding a
prenuptial invalid because wife did not enter agreement knowledgeably).
172
See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J.
950 (1979).
173
See id. at 968-69.
174
See id. at 956-57 (describing the advantages of private solutions to divorce disputes).
175
See id. at 978-79 (“[I]f there is substantial variance among the possible court-imposed outcomes, the relatively more
risk-averse party is comparatively disadvantaged” because that party “will accept less in order to avoid the gamble.”).
Mnookin and Lewis also argue that uncertainty about the legal outcome increases transaction costs, which in turn
advantages the party better able to bear them. See id. at 979.
176
In re Marriage of Spiegel, 553 N.W.2d 309, 315 (Iowa 1996).
177
Greenwald v. Greenwald, 454 N.W.2d 34, 41 (Wis. Ct. App. 1990).
178
See Atwood, supra note 97, at 138 (“[F]air and full disclosure of financial holdings is an absolute prerequisite to
enforcement of a premarital agreement.”).
179
See, e.g., Newman v. Newman, 653 P.2d 728, 733 (Colo. 1982) (en banc) (“Once the stringent tests of full disclosure
and lack of fraud or overreaching are met, the parties are free to agree to any arrangement for division of their property,
including a waiver of any claim to the property of the other.”); Cary v. Cary, No. 02-S-01-9505-CV-00035, 1996 WL
291095, at *5 (Tenn. June 3, 1996) (“So long as the antenuptial agreement was entered into freely and knowledgeably,
with adequate disclosure, and without undue influence or overreaching, the provision limiting alimony will be
enforced” unless the spouse would become a public charge.).
180
Gant v. Gant, 329 S.E.2d 106, 114 (W. Va. 1985) (upholding a prenuptial agreement and emphasizing that using vague
judicial standards of fairness to measure prenuptials invites “the very wealth redistribution that these agreements are
designed to prevent”).
181
See Atwood, supra note 97, at 133 (noting that the wife typically petitions the court for “a more favorable economic
settlement ... than what she would receive under the terms of the agreement”).
182
Brod, supra note 5, at 243.
183
See Deborah M. Kolb & Gloria G. Coolidge, Her Place at the Table: A Consideration of Gender Issues in Negotiation
6-7 (Program on Negotiation, Working Paper Series No. 88-5, 1988) (discussing women’s ability to negotiate
economic issues such as salary and divorce settlement).
184
Carol M. Rose, Women and Property: Gaining and Losing Ground, 78 Va. L. Rev. 421, 423 (1992) (exploring reasons
women “systematically do worse than men” with respect to obtaining and owning property).
185
See id. at 445.
186
Glass, supra note 75, at 4 (quoting Leon Friedman, Professor, Hofstra School of Law). For a sustained attack on
prenuptial agreements on this ground, see Brod, supra note 5, at 240-252. Brod argues that “the prospective wife is
more likely to be harmed by a premarital agreement than the prospective husband.” Id. at 243.
187
See, e.g., In re Marriage of Spiegel, 553 N.W.2d 309, 317 (Iowa 1996) (upholding a prenuptial signed five days before
the wedding after the man threatened to cancel the wedding unless his fiancé signed the agreement; the court reasoned
that “[p]ressure ... and its timing, may be criticized as unkind, but cannot be deemed illegal”); Rathjen v. Rathjen, No.
05-93-00846-CV, 1995 WL 379322, at *4 (Tex. App. May 30, 1995) (upholding a prenuptial signed the day of the
wedding despite the wife’s assertion that she had not entered the agreement freely because “canceling the wedding was
not a reasonable alternative ... [and] would have caused her great embarrassment in front of her family and friends”);.
188
See In re Estate of Garbade, 633 N.Y.S.2d 878, 879-80 (App. Div. 1995) (holding that the wife’s failure to obtain
independent counsel did not establish the fraud necessary to invalidate the prenuptial agreement).
189
Id. at 880.
190
Id. at 879.
191
Some judges have noted this dynamic. See Simeone v. Simeone, 581 A.2d 162, 168 (Pa. 1990) (“I view prenuptial
agreements as being in the nature of contracts of adhesion with one party generally having greater authority than the
other who deals in a subservient role. I believe the law protects the subservient party, regardless of that party’s sex, to
insure equal protection and treatment under the law.”) (Papadakos, J., concurring in result).
192
See Rowland v. Rowland, 599 N.E.2d 315, 316-317 (Ohio Ct. App. 1991).
193
See id. at 317.
194
Id. at 320.
195
See id. at 320-21 (explaining that the facts of the case did not comprise good faith and fair dealing).
196
See Randolph v. Randolph, No. 03S-01-9510-CV-00119, 1996 WL 506715, at *7 (Tenn. Sept. 9, 1996).
197
See, e.g., Fletcher v. Fletcher, 628 N.E.2d 1343, 1348 (Ohio 1994) (stating that “when an antenuptial agreement
provides disproportionately less than the party would have received under equitable distribution, the party
financially disadvantaged must have a meaningful opportunity to consult with counsel,” and finding plaintiff did
have such an opportunity) (emphasis added).
198
See, e.g., Randolph, 1996 WL 506715, at *7; Gant v. Gant, 329 S.E.2d 106, 116 (W. Va. 1985).
199
Chaudhary v. Ali, No. 0956-94-4, 1995 WL 40079, at *1 (Va. Ct. App. Jan. 31, 1995) (holding a prenuptial invalid
because it was not negotiable, did not require the disclosure of assets, and “[t]here was no evidence wife received
independent advice prior to signing the agreement”).
200
James v. James, No. CN93-09971, 1995 WL 788187, at *13 (Del. Fam. Ct. May 18, 1995) (upholding a prenuptial
entered into by parties of disparate economic means because both had made fair and reasonable disclosures, had
entered into the agreement voluntarily, and had retained independent counsel).
201
Id.
202
Estate of Thies v. Lowe, 903 P.2d 186, 192 (Mont. 1995) (Leaphart, J., dissenting).
203
Id.
204
This rule is based on that proposed by Justice Resnick in the dissent in Fletcher v. Fletcher, 628 N.E.2d 1343, 1350
(Ohio 1994) (Resnick, J., dissenting). The requirement of counsel would not apply, however, in cases where neither
party wishes to use a lawyer.
205
This procedure is illustrated in Lebeck v. Lebeck, 881 P.2d 727 (N.M. Ct. App. 1994), where the husband asked his wife
to review the prenuptial with independent counsel and to have the attorney verify that they had reviewed the
agreement and that his wife understood it. See id. at 730. This rule is unlikely to exert too great a financial burden
since most couples enter prenuptial agreements to protect substantial interests in financial or property investments.
As one court noted, “these rules are unlikely to have any untoward consequences among those marrying for the first
time ... because ... it is a rare, starey-eyed [sic] couple in their early twenties who enter into an elaborate prenuptial
agreement; after all, among the young, marriage is an exercise in optimism.” Gant v. Gant, 329 S.E.2d 106, 115 (W. Va.
1985).
206
This rule does not foreclose courts’ ability to apply the two most stringent tests for evaluating prenuptials:
unconscionability and the “public charge” test. An agreement is unconscionable if the “inequality [is] so strong,
gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation
at the inequality of it.” Peirick v. Peirick, 641 S.W.2d 195, 197 (Mo. Ct. App. 1982). Alternatively, the court can refuse
to enforce an agreement “if enforcement deprives one spouse of support that he or she cannot obtain otherwise and
results in that spouse becoming a public charge.” Cary v. Cary, No. 02-S-01-9505-CV-00035, 1996 WL 291095, at *6
(Tenn. June 13, 1996). Due to the stringency of these tests, they would be unlikely to affect parties’ negotiations.
207
See Randolph v. Randolph, No. 03S-01-9510-CV-00119, 1996 WL 506715, at *7 (Tenn. Sept. 9, 1996) (speculating
that “representation by independent counsel may be the best evidence that a party has entered into an antenuptial
agreement voluntarily and knowledgeably”).
208
See, e.g., Gant, 329 S.E.2d at 112 (asserting that “nowhere in the law of contracts is it required that a party be advised
by independent counsel before an agreement to which he or she sets his or her hand is enforceable”).
209
Carpenter v. Carpenter, 449 S.E.2d 502, 504 (Va. Ct. App. 1994) (holding a prenuptial invalid because the husband
failed to disclose his assets, and because the wife signed the agreement without full knowledge of her legal rights).
210
Simeone v. Simeone, 581 A.2d 162, 166 (Pa. 1990).
211
See J. Thomas Oldham, Divorce, Separation, and the Distribution of Property 4-18.1 (1996) (“[R]equiring independent
counsel is unwise.... American lawyers are not known for their ability to harmonize ongoing relationships between
parties.... [I]t would not be surprising if a substantial number of marriages that would have resulted will not occur
when lawyers are inserted into premarital negotiations.”).
212
Mnookin & Kornhauser, supra note 172, at 986.
213
Lebeck v. Lebeck, 881 P.2d 727, 733 (N.M. Ct. App. 1994) (quoting 5 Samuel Williston, A Treatise on the Law of
Contracts § 11:8, at 478 (Richard A. Lord ed., 4th ed. 1993)).
214
Burger, supra note 154, at 77.
End of Document
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