Rethinking Premarital Agreements: A Collaborative Approach

Abstract

Scholars and lawyers have told us to be wary of premarital agreements — unfairly characterizing them as being coercive, unfair, sexist, unromantic, and even predictors of future divorce. Critics argue, and the law often presumes, that default marital property laws benefit women — an argument that is outdated, at best. Modifications of the default rules, they claim, must be viewed critically in order to prevent women — who are typically in an economically inferior position — from being harmed. In order to protect a woman from the harms of negotiating with her economically superior spouse, the common law grants courts expansive authority to review marriage contracts for procedural and substantive fairness.

This approach — the approach taken by most major common law jurisdictions — causes more harm than good. It is premised on several sexist and faulty presumptions and it is rarely supported by any actual data. In an effort to protect women from their own ignorance, weakness, and stupidity, the common law creates barriers to entering into premarital agreements that fail to achieve any meaningful protection. The legal profession — in viewing entry into a premarital agreement as an antagonistic process — has erected additional ethical barriers to hiring an attorney to prepare a premarital agreement. For those couples that do decide to pursue a marriage contract, the barriers put in place by the common law and by the legal profession inject unnecessary expense and adversarial decision-making to what could — and should — be a relatively inexpensive and collaborative process. Common law and the legal profession have, in a sense, created a self-fulfilling prophesy. By adopting a dual-representation, dissolution-focused model for entering into premarital agreements, we increase the chances that agreements will be coercive, stressful, and will fail to reflect the expectations of the spouses.

I argue that these barriers are premised on sexist and outdated notions — notions that typically do more harm than good. Removing these barriers and empowering couples to decide how to arrange their financial affairs would have an overall positive effect on relationship stability and equality of money management within the relationship.

Keywords: prenuptial, premarital, antenuptial, marriage, divorce

JEL Classification: K12, K36, J12