Bargaining in the Shadow of Love: The Enforcement of Premarital Agreements and How We Think About Marriage

Abstract

Premarital agreements are agreements entered immediately before marriage, usually with the intention of controlling the disposition of property upon divorce. These agreements were once universally treated as void because contrary to public policy, but are currently enforceable in all 50 states. Approximately half the states impose significant tests of procedural fairness and/or substantive fairness before enforcing the agreements. The other half treat premarital agreements more or less like other contracts. The academic commentary on these sorts of agreements also seems split: between those who think these sorts of contracts should always be enforced, and that these agreements raise no special concerns (the optimists); and those who believe that these sorts of contracts should never be enforced because they are almost always unfair, and may work to increase the subordination of women (the pessimists). The article emphasizes, in response to the optimists, that premarital agreements frequently raise serious concerns about duress and about rationality/voluntariness. However, given the value of allowing parties some freedom to set the terms on which they enter marriage, it would be useful to enforce these agreements, despite their problems. In response to the pessimists, the article emphasizes the extent to which modern contract law analysis (including the UCC treatment of good faith; recent case-law on duress and undue influence, commentary about different treatment for long-term/relational contracts, and Prof. Richard Craswell's analysis of unconscionability) can protect against most, but by no means all, of the unfairness that can result from enforcement.

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