Postnuptial Agreements

Abstract

The Uniform Premarital Agreement Act raised the promise of greater individual freedom in defining intimate relationships. This promise, however, was never realized. Due to a number of practical rather than legal constraints, prenuptial agreements remain rare. Postnuptial agreements — contracts that control the division of assets upon divorce and are signed after a couple weds — are poised to fill this gap. Unfortunately, there is little scholarship and contradictory precedent regarding whether, and under what terms, such agreements are enforceable. The skeptics argue that the bargaining dynamics within an intact marriage are materially different than those in the premarital context, and accordingly, more judicial oversight of postnups is warranted. This Article draws on bargaining theory and numerous studies of strategic negotiation to argue that the dynamics of spousal negotiation create significant limits on opportunism. Although spousal bargaining will often result in an unequal distribution, the extent of this inequality is severely constrained, and is justified under a plausible compromise between liberal and communitarian ideals.

Keywords: Prenuptial, premarital, postnuptial, family, bargaining, game theory, liberal theory, communitarian theory

JEL Classification: J12, K12, C72, C78