The ALI Principles and Agreements: Seeking a Balance Between Status and Contract

Abstract:     
Chapter 7 of the American Law Institute's Principles of the Law of Family Dissolution discusses agreements: premarital agreements, marital agreements, and separation agreements. This article (written for an October 2004 Harvard University conference on the ALI Principles) offers an overview of the approach of the ALI Principles, comparing its recommendations to current law. The ALI Principles consistently seeks a balance between advancing the autonomy interests of the parties and protecting vulnerable parties who might be harmed by enforcement. While one might argue for shifting the balance somewhat more towards the enforcement of agreements, the primary focus of the article is on the aspects of the debate that the ALI Principles discusses too briefly, or does not discuss at all: for example, arguments for treating marital agreements differently from premarital agreements; and arguments for the special treatments of religious premarital agreements (Ketubahs and Mahrs), private covenant marriage agreements, and reconciliation agreements.

Keywords: premarital agreements, antenuptial agreements, marital agreements, separation agreements

Accepted Paper Series