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Marital Contracts and the Meaning of Marriage

33 Pages Posted: 25 Mar 2012  

Barbara Ann Atwood

University of Arizona - James E. Rogers College of Law

Date Written: March 23, 2012

Abstract

Contracts between spouses that alter the basic default rules of marital property and support are subject to widely varying legal standards across the United States. As with premarital contracts, the goals of efficiency and predictability are often in tension with other policy concerns, such as the recognition that the dynamics of an intimate relationship may distort the bargaining process. Although all states require financial disclosure as a prerequisite for an enforceable marital contract, some impose additional procedural and substantive criteria beyond those applied to premarital contracts. The varying legal standards, in turn, are rooted in competing visions about the meaning of marriage. These divergent constructions of marriage range from a status defined by immutable rights and obligations to an individualized relationship subject to private ordering in almost all respects. In light of evolving social attitudes about marriage and the diminishing popularity of the institution itself, this Essay ultimately recommends a flexible framework that provides a broad scope of contractual freedom while still holding spouses to a core duty of honesty and good faith in forming marital contracts.

Keywords: marital contract, marital agreement, premarital agreement, marriage, family, spousal contracts

Suggested Citation

Atwood, Barbara Ann, Marital Contracts and the Meaning of Marriage (March 23, 2012). Arizona Law Review, Vol. 54, p. 11, 2012; Arizona Legal Studies Discussion Paper No. 12-08. Available at SSRN: https://ssrn.com/abstract=2027956

Barbara Ann Atwood (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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