Privatized Pluralism: Branded Relationship Contracts as Non-Governmental Family Law

Abstract

The current mechanisms to promote family law pluralism are woefully inadequate. Some scholars lament the inability of state legislatures to enact pluralism-enhancing family law reforms, and yet turn back to those same institutions in the hopes that, somehow, this time they will find the political will to pass radical family law reforms. Other scholars put their faith in private ordering as a pathway to family law pluralism, where individual couples navigate emotionally difficult conversations and pay expensive lawyers to draft terms that may ultimately be thwarted by judicial resistance to relationship contracts. This Article identifies a novel form of decentralized, non-governmental family law that can actually fulfill the pluralistic aspirations of other, failed, family law reform efforts. It envisions non-profits or other entities creating packages of family law embedded into stock relationship contracts like prenuptial or cohabitation agreements. Simply by identifying an entity that the couple trusts, they can quickly and easily opt into family law regimes that are far more likely to track their preferences than the default family law regimes provided by increasingly gerrymandered state legislatures. In addition to providing a novel pathway to family law pluralism, these branded relationship contracts generate a host of unique dialogic benefits and offer new mechanisms and new audiences for various family law reform projects.

Keywords: family law, pluralism, marriage, divorce, prenup, contracts, cohabitation, cohabitation agreements