MARITAL CONTRACTS
AND THE MEANING OF MARRIAGE
Barbara A. Atwood
*
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.
* Mary Anne Richey Professor Emerita of Law, University of Arizona James
E. Rogers College of Law. I am deeply grateful to the Arizona Law Review for devoting this
issue to the field of family law in recognition of my retirement. The provocative scholarship
assembled by the editors demonstrates just how fascinating and dynamic a field it is. I also
appreciate the willingness of my friend Ira Ellman to contribute an insightful article on the
topic of child-support reform. Finally, I thank Brian Bix, Jamie Ratner, and Ted Schneyer
for their helpful comments on earlier versions of this Essay, and Corey Mantei and Raphael
Avraham of the Arizona Law Review for their superb editing. Although I am chairing a
project of the Uniform Law Commission that is closely related to the topic of this Essay, all
views expressed here are my own and not those of the Commission.
12 ARIZONA LAW REVIEW [VOL. 54:11
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................ 12
I. THE SPECTRUM OF APPROACHES .......................................................................... 16
A. Marriage as an Evolving Institution .............................................................. 16
B. Marriage in the Context of Spousal Contracts .............................................. 22
1. Marriage as Fixed Status ........................................................................... 22
2. Marriage as Confidential Relationship ...................................................... 26
3. Marriage as Contract ................................................................................. 31
II. A BRIEF INTERNATIONAL COMPARATIVE LOOK ................................................. 34
III. LESSONS FOR PUBLIC POLICY ............................................................................ 37
CONCLUSION ........................................................................................................... 41
INTRODUCTION
Across the United States, the legal status of marital agreements remains
strangely unsettled. The marital agreement, as used in this Essay, refers to a
contract entered between spouses during an ongoing marriage that spells out the
spouses’ economic rights vis-à-vis one another during the marriage or at its
termination by divorce or death.
1
The standards for enforcement of these
agreements are more amorphous than the standards for the other two kinds of
domestic contracts—separation agreements and premarital agreements. While
timing and context distinguish marital, premarital, and separation agreements,
2
all
three fall within the sensitive realm of contractual negotiation between intimates.
Courts today largely enforce separation agreements—settlements
hammered out by divorcing couples—because public policy favors private
consensual resolution of litigation.
3
With over 90% of divorces being resolved by
parties through negotiation and settlement, separation agreements have become the
1. This Essay focuses on agreements that fundamentally alter the property and
economic support laws that would otherwise apply to spouses by virtue of their marital
status under state law. Agreements containing terms typically treated as unenforceable (e.g.,
provisions governing spousal conduct during the marriage, child custody, or child support)
are not explored here. For an argument that the policies against enforcing certain
nonmonetary terms in family contracts could apply to monetary terms as well, see Katharine
B. Silbaugh, Marriage Contracts and the Family Economy, 93 N
W. U. L. REV. 65 (1998).
2. Brian H. Bix, Private Ordering and Family Law, 23 J.
AM. ACAD. MATRIM.
LAW. 249, 266 (2010).
3. Not surprisingly, the Uniform Marriage and Divorce Act, with its move
toward no-fault divorce and the philosophy of the clean break, endorsed the enforcement of
separation agreements between the spouses, subject to a relatively lenient standard of
judicial review. See U
NIF. MARRIAGE & DIVORCE ACT § 306 (amended 1973), 9A U.L.A.
248–49 (1998) (providing for enforcement of terms of separation agreement regarding
property and spousal support unless unconscionable).
2012] MARITAL CONTRACTS 13
norm rather than the exception.
4
While valid concerns exist about distortions of
bargaining power at the end of a marriage,
5
separation agreements are typically
given robust enforcement in the courts in the absence of fraud or duress.
6
Premarital agreements have had a different history. Courts traditionally
were more receptive to premarital agreements that provided for property
distribution at death than those that prescribed the consequences of divorce.
7
Until
the 1970s, divorce-focused agreements were viewed with deep suspicion because
public policy disfavored any contractual arrangement that might encourage divorce
or that altered the state-imposed terms of marriage.
8
Over the past four decades, as
restrictive divorce laws have given way to no-fault regimes,
9
prenuptial
contracting has gained wide acceptance.
10
Most states today have developed
standards, whether statutory or judge-made, to respect a fair degree of party
autonomy in premarital agreements.
11
While jurisdictions differ as to the degree to
which courts should evaluate the substantive fairness of such agreements, the clear
4. See generally DOUGLAS E. ABRAMS ET AL., CONTEMPORARY FAMILY LAW
909–19 (2d ed. 2009).
5. See, e.g., Sally Burnett Sharp, Fairness Standards and Separation
Agreements: A Word of Caution on Contractual Freedom, 132 U.
PA. L. REV. 1399, 1405–
07 (1984) (identifying the unique emotional dynamics between spouses and arguing that
courts should carefully scrutinize separation agreements for procedural and substantive
fairness).
6. For example, in In re Marriage of Patterson, 255 P.3d 634, 645 (Or. Ct.
App. 2011), the court upheld a separation agreement signed seven years before the divorce.
The court emphasized the public policy favoring marital settlement agreements “to decrease
litigation and to remove [divorce] proceedings from the adversarial process.” Id. at 643
(citing In re Marriage of McDonnal, 652 P.2d 1247, 1250 (Or. 1982)); see also Billington v.
Billington, 595 A.2d 1377, 1381 (Conn. 1991) (“[P]rivate settlement of the financial affairs
of estranged marital partners is a goal that courts should support rather than undermine.”
(citations omitted)).
7. See generally Brian Bix, Bargaining in the Shadow of Love: The
Enforcement of Premarital Agreements and How We Think About Marriage, 40 W
M. &
MARY L. REV. 145, 148–58 (1998).
8. See, e.g., McCarthy v. Santangelo, 78 A.2d 240, 241 (Conn. 1951); see also
Bix, supra note 7, at 150–53.
9. See generally H
ERBERT JACOB, SILENT REVOLUTION: THE TRANSFORMATION
OF
DIVORCE LAW IN THE UNITED STATES (1988) (analyzing the history of reforms in divorce
law, property division, and child custody during the move from fault to no-fault divorce);
Jens-Uwe Franck, ‘So Hedge Therefore, Who Join Forever’: Understanding the
Interrelation of No-Fault Divorce and Premarital Contracts, 23 I
NT’L J.L. POL’Y & FAM.
235 (2009) (comparing the German and American legal regimes and suggesting that the
availability of premarital contracts is a logical corollary of no-fault divorce).
10. The evolution of the law of prenuptial contracts has been explored by
numerous scholars. See, e.g., Bix, supra note 7, at 148–58; Gail Frommer Brod, Premarital
Agreements and Gender Justice, 6 Y
ALE J.L. & FEMINISM 229, 252–54 (1994); Marjorie
Maguire Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70
C
ALIF. L. REV. 204, 207–11 (1982); Judith T. Younger, Lovers’ Contracts in the Courts:
Forsaking the Minimum Decencies, 13 W
M. & MARY J. WOMEN & L. 349, 352–59 (2007).
11. See Bix, supra note 2, at 263–66.
14 ARIZONA LAW REVIEW [VOL. 54:11
trend is toward greater enforceability.
12
The Uniform Premarital Agreement Act
(“UPAA”),
13
now adopted in whole or in part by about half of U.S. states, has been
a major driver of this trend.
14
In contrast, the evolution of the law with respect to agreements entered
into after marriage has not kept pace. The fundamental question as to whether
marital agreements are void as contrary to public policy is still being actively
litigated in state courts.
15
At least one state adheres to the view that spouses lack
legal capacity to contract with one another as to the basic elements of marriage.
16
In several states, spousal support is off limits as a possible subject of a marital
agreement.
17
Many states take the position that spouses are in a “confidential
relationship” with one another, therefore requiring marital agreements to meet a
standard of procedural and substantive fairness that is higher than that applied to
premarital agreements.
18
Common concerns are that one spouse will exact unfair
concessions from the other as a condition of continuing the marriage,
19
or that a
12. Id. at 266 (“The area of premarital agreements may be the place within
family law where there has been the greatest movement towards recognizing private
ordering, though even here . . . many states have reserved the right to refuse enforcement
where fairness concerns arise, and there remain significant limits on the types of provisions
the states will enforce.”).
13. U
NIF. PREMARITAL AGREEMENT ACT, 9C U.L.A. 39–58 (2001); see also infra
notes 155–62 and accompanying text.
14. For a current list of states that have enacted the UPAA, see Legislative Fact
Sheet – Premarital Agreement Act, U
NIF. LAW COMM’N, http://www.nccusl.org/
LegislativeFactSheet.aspx?title=Premarital Agreement Act (last visited Dec. 30, 2011).
Moreover, their variations from the black-letter text can be found in the Uniform Laws
Annotated. See U
NIF. PREMARITAL AGREEMENT ACT, 9C U.L.A. 37–38 (2001). Professor
Tom Oldham recently completed a comprehensive critique of the UPAA. J. Thomas
Oldham, With All My Worldly Goods I Thee Endow, or Maybe Not: A Reevaluation of the
Uniform Premarital Agreement Act After Three Decades, 19 D
UKE J. GENDER L. & POL’Y
(forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_
id=1753785.
15. See, e.g., Bedrick v. Bedrick, 17 A.3d 17, 24 (Conn. 2011) (holding that the
enforcement of a postnuptial agreement is not a per se violation of public policy); Ansin v.
Craven-Ansin, 929 N.E.2d 955, 962 (Mass. 2010) (same).
16. See, e.g., O
HIO REV. CODE ANN. § 3103.06 (2011) (providing that husband
and wife cannot contract to alter their legal relations other than to agree for immediate
separation and support during the separation).
17. See, e.g., M
ONT. CODE ANN. § 40-2-303 (2011) (codifying rule that husband
and wife cannot contract to alter their legal relations except as to property or for immediate
separation and support during separation); N
EV. REV. STAT. § 123.080 (2011) (same); N.M.
STAT. ANN. § 40-2-8 (2011) (same); OKLA. STAT. tit. 43, § 205 (2011) (same); S.D.
C
ODIFIED LAWS § 25-2-13 (2011) (same).
18. See, e.g., N
EV. REV. STAT. § 123.070 (2011) (providing that spousal contracts
are subject to standards for “persons occupying relations of confidence and trust toward
each other”); Ansin, 929 N.E.2d at 963–64 (holding that marital agreements are subject to
careful scrutiny, including assessment of whether terms are fair and reasonable at execution
and enforcement).
19. See Pacelli v. Pacelli, 725 A.2d 56, 58, 61–62 (N.J. Super. Ct. App. Div.
1999) (invalidating marital agreement where husband threatened wife with divorce if she
refused to sign, and the agreement was grossly disproportionate). In Pacelli, the court held
2012] MARITAL CONTRACTS 15
postnuptial agreement at the beginning of a long marriage may be unfair in light of
changed circumstances.
20
At the same time, a few courts reject the “paternalism”
of the past in favor of an approach that promotes freedom of contract.
21
Depending
on the state, enforcement of a marital contract materially altering the default rules
of property and spousal support may be seen as a threat to the institution of
marriage or the logical result of rational bargaining between equals.
This Essay explores the divergent enforcement standards for marital
contracts and the surprisingly discordant perceptions of the marital relationship
that have emerged from case law and state legislation. Developments in Western
Europe on family contracts are briefly examined to draw comparative lessons from
the European experience. The Essay concludes by suggesting lessons for
policymakers from a law reform perspective.
The Uniform Law Commission (“ULC”), also known as the National
Conference of Commissioners on Uniform State Laws,
22
is currently engaged in
developing an act to govern both premarital and marital agreements.
23
As chair of
the Drafting Committee, I am acutely aware of the challenge of proposing
standards for marital contracts that could be enacted across the United States.
24
Viable standards must accommodate the competing values that are always at play
in family contracts. The goals of protecting vulnerable family members and
effectuating family law policy
25
exist alongside the goals of promoting efficiency,
that marital agreements must be closely scrutinized to ensure that they are not the product of
coercion or duress and that the terms are substantively fair at the time of enforcement. Id. at
62–63. Minnesota views marital agreements with such suspicion that it has legislatively
declared them to be unenforceable unless both spouses were represented by counsel; an
agreement is presumed unenforceable if either party seeks a divorce within two years of
signing. M
INN. STAT. § 519.11 (2011); see also Bix, supra note 2, at 266–70.
20. See Bedrick, 17 A.3d at 25–26. For a more thorough discussion of Bedrick,
see infra notes 124–38 and accompanying text.
21. See, e.g., Stoner v. Stoner, 819 A.2d 529, 532 (Pa. 2003); In re Estate of
Smid, 756 N.W.2d 1, 8–9 (S.D. 2008). The Stoner case is further discussed infra Part I.B.3.
22. The National Conference of Commissioners on Uniform State Laws adopted
“Uniform Law Commission” as its preferred name in 2006. See About the ULC, U
NIF. LAW
COMM’N, http://nccusl.org/Narrative.aspx?title=About the ULC (last visited Dec. 30, 2011).
23. The Committee’s drafts and internal memoranda are available at
Committees – Premarital and Marital Agreements, U
NIF. LAW COMM’N, http://nccusl.org/
Committee.aspx?title=Premarital and Marital Agreements (last visited Dec. 30, 2011).
24. The guidelines governing marital agreements developed by the American
Law Institute (“ALI”), for example, have influenced the law in a few states but have not
been widely adopted. See generally A
M. LAW INST., PRINCIPLES OF THE LAW OF FAMILY
DISSOLUTION: ANALYSIS AND RECOMMENDATIONS 945–1032 (2002) [hereinafter ALI
PRINCIPLES]. The ALI standards were heavily relied on in Ansin v. Craven-Ansin, 929
N.E.2d 955 (Mass. 2010). See infra notes 107–23 and accompanying text.
25. For an explanation of why economic theory falls short when it is used to
analyze exchange, self-interest, and altruism within the family, see Ann Laquer Estin, Love
and Obligation: Family Law and the Romance of Economics, 36 W
M. & MARY L. REV. 989,
1016–23 (1995). For an additional argument that premarital agreements exacerbate socio-
economic inequality between women and men, see Brod, supra note 10, at 252–53.
16 ARIZONA LAW REVIEW [VOL. 54:11
predictability, and reliance in the furtherance of freedom of contract.
26
Law reform
efforts in matters governing the family are notoriously difficult,
27
and the ULC
project is no exception.
Today’s reformers must also take into account the diminishing popularity
of marriage itself.
28
The decline in marriage rates in the United States may signal,
in part, disenchantment with the trappings of marriage. If a state’s law on marital
agreements reflects a particular vision of marriage as an institution, that vision
may affect people’s choices. An institution heavily laden with mandatory terms
may not attract adherents. The extent to which the law should protect spouses from
the consequences of their agreements because of their married status is a key
concern of the ULC project and the central focus of this Essay.
29
I suggest in the
discussion that follows that the law of marital agreements should be compatible
with evolving understandings of the meaning of marriage, including the rise of
individualized marriage.
30
I. THE SPECTRUM OF APPROACHES
Commentators, judges, and legislators have offered a range of marriage
meanings that vary according to context. This Section first considers the changing
nature of the institution of marriage generally before probing interpretations of
marriage that are reflected in the legal standards used by courts in evaluating
marital contracts.
31
A. Marriage as an Evolving Institution
Historian Stephanie Coontz reminds us that for much of history, marriage
was an arranged union designed to bring together families or kin groups for
26. The Nobel Prize-winning, Chicago School economist Gary Becker was the
first to apply a market theory of law and economics to the family. See generally G
ARY S.
BECKER, A TREATISE ON THE FAMILY (enlarged ed. 1991). Other scholars from decidedly
different political persuasions have argued for an expanded role for contracts in marriage.
See, e.g., Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women’s
Work Through Premarital Security Agreements, 77 T
EX. L. REV. 17, 18–20 (1998).
27. See generally Ira Ellman, Why Making Family Law Is Hard, 35
ARIZ. ST. L.J.
699, 702 (2003) (explaining that reforming family law is difficult not only because of
people’s deeply held personal convictions but also because reforms seldom achieve the
intended goals).
28. See infra notes 55–64 and accompanying text.
29. While the progress of family law may have been from status to contract as a
general matter, cf. H
ENRY SUMNER MAINE, ANCIENT LAW: ITS CONNECTION WITH THE EARLY
HISTORY OF SOCIETY AND ITS RELATION TO MODERN IDEAS 174 (John Murray ed., 10th ed.
1920) (1861), family law doctrine in most states clearly has not shaken off “status” entirely.
30. See A
NDREW J. CHERLIN, THE MARRIAGE-GO-ROUND: THE STATE OF
MARRIAGE AND THE FAMILY IN AMERICA TODAY 114–15 (2009) (discussing rise of
expressive individualism in religious life and in marriage).
31. For an overview of the diversity of contemporary family life in the United
States, see J. Herbie DiFonzo, How Marriage Became Optional: Cohabitation, Gender, and
the Emerging Functional Norms, 8 R
UTGERS J.L. & PUB. POL’Y 521 (2011).
2012] MARITAL CONTRACTS 17
inheritance, property control, and other economic or political reasons.
32
Love-
based marriage, Coontz emphasizes, is of relatively recent vintage and has
inevitably destabilized marriage as an institution. As she observes, “The very
features that promised to make marriage such a unique and treasured personal
relationship opened the way for it to become an optional and fragile one.”
33
Likewise, sociologist Andrew Cherlin suggests that the changing goals of marriage
have contributed to its fragility, with today’s couples viewing marriage as a
vehicle for personal fulfillment and self-realization rather than a commitment for
life-long sharing.
34
In a similar vein, Professor Brian Bix has emphasized the complicated
interplay between legal change and social values.
35
Changes in legal regulation of
marriage inevitably affect “the way we think about marriage.”
36
As the law
becomes more receptive to private ordering in marriage, for example, those legal
changes may not only reflect, but also promote a view of marriage as “less a
commitment for life, and more a kind of serial monogamy.”
37
Along the same line,
Professor Barbara Stark has identified a “postmodern” trend in marriage—a move
away from a unitary, fixed notion of marriage toward an institution that is variable
according to individualized preferences.
38
In proposing that couples be able to
select from a menu of marriage alternatives, she concludes that “marriage law that
explicitly contemplates varied, changing, contextualized forms of marriage, may in
fact be more compatible with contingent, problematic, but nevertheless enduring
human love, than the reified abstraction we now call ‘marriage.’”
39
While no state
has codified a full menu of marriage categories recommended by Professor Stark,
providing the option of a covenant marriage is a step in that direction.
40
Perhaps as a response to the fragility of marriage, Professor Milton Regan
maintains that the law should facilitate trust and self-sacrifice in marriage.
41
To
32. STEPHANIE COONTZ, MARRIAGE, A HISTORY: FROM OBEDIENCE TO INTIMACY
OR
HOW LOVE CONQUERED MARRIAGE 24–31 (2005).
33. Id. at 5.
34. See C
HERLIN, supra note 30, at 87–115; see also JOANNA L. GROSSMAN &
LAWRENCE M. FRIEDMAN, INSIDE THE CASTLE: LAW AND THE FAMILY IN 20TH CENTURY
AMERICA 56–58 (2011).
35. Bix, supra note 7, at 158–62.
36. Id. at 159. For a discussion of the way that regulation of non-traditional
marriages shapes the way we see traditional marriage, see Courtney Megan Cahill,
Regulating at the Margins: Non-Traditional Kinship and the Legal Regulation of Intimate
and Family Life, 54 A
RIZ. L. REV. 43 (2012).
37. Bix, supra note 7, at 161. Professor Bix recognizes, however, that marriage
can mean quite different things to different people, indicating that the law should be
similarly flexible. Id. at 162.
38. Barbara Stark, Marriage Proposals: From One-Size-Fits-All to Postmodern
Marriage Law, 89 C
ALIF. L. REV. 1479, 1509–20 (2001).
39. Id. at 1482.
40. See, e.g., A
RIZ. REV. STAT. ANN. §§ 25-901 to -906 (2011) (authorizing
“covenant marriage” with counseling requirements, fault-based limits on divorce, and other
restrictions).
41. See M
ILTON C. REGAN, JR., ALONE TOGETHER: LAW AND THE MEANINGS OF
MARRIAGE 24–26 (1999).
18 ARIZONA LAW REVIEW [VOL. 54:11
Professor Regan, the ideal marriage is one in which the spouses not only put the
interests of the marriage ahead of their individual interests, but do not perceive the
marital interests as distinct from their own.
42
Professor Marsha Garrison also sees
unique advantages to a marriage relationship based on an ethic of sharing and
commitment.
43
She notes that spouses have “publicly assumed binding obligations
to each other that restrict other marital opportunities, inhibit participation in other
sexual and sharing relationships, structure public and private expectations about
their relationship, and burden exit from it. . . . This fundamental difference
distinguishes marital relationships, for all their variability, from non-marital
relationships.”
44
Professor Garrison recommends that the law maintain the unique
status of marriage because of the known benefits that the institution provides for
participants.
45
The emergence of same-sex marriage
46
has led some scholars to re-
theorize marriage. Professor Suzanne Kim suggests that the dismantling of sex-
difference requirements may lead to a functional meaning that reflects the “core
values” of marriage, which she identifies as “commitment and caregiving.”
47
“If
we can manage to untether marriage from its gender hierarchy, its
heteronormativity, and its exclusivity,” she writes, “then our collective conceptions
42. Id. at 30 (theorizing that marriage involves “both preservation of
individuality and commitment to a shared purpose that transcends self”). For a critique of
Regan’s theory, see Katharine B. Silbaugh, One Plus One Makes Two, 4 G
REEN BAG 2D
109, 113–14 (2000) (reviewing R
EGAN, supra note 41) (noting that idealization of self-
sacrifice in marriage generally works to the disadvantage of women).
43. Marsha Garrison, Cohabitant Obligations: Contract Versus Status, in T
HE
FUTURE OF FAMILY PROPERTY IN EUROPE 115, 121 (Katharina Boele-Woelki et al. eds.,
2011).
44. Id. at 127.
45. Professor Garrison opposes, for example, the imposition of marriage-like
financial obligations on cohabitants because, in part, such conscriptive remedies might
dilute the special nature of the marriage relationship. Id. at 136–37.
46. Legalization of same-sex marriage has occurred through state constitutional
litigation in three states. Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 482 (Conn.
2008); Varnum v. Brien, 763 N.W.2d 862, 872 (Iowa 2009); Goodridge v. Dep’t of Pub.
Health, 798 N.E.2d 941, 948 (Mass. 2003). Three other states have authorized same-sex
marriage by legislative act. N.H.
REV. STAT. ANN. § 457:1-a (2011); N.Y. DOM. REL. LAW §
10-a (2011); V
T. STAT. ANN. tit. 15, § 8 (2011). Recently, the Washington State Legislature
voted to allow same-sex marriage in the state, a law that will go into effect on June 7, 2012,
unless opponents gather sufficient signatures before that date to place the matter on the
ballot for the November 2012 election. Nicole Neroulias, Washington Governor Signs Gay
Marriage Law, C
HI. TRIB. (Feb. 13, 2012, 9:22 PM), http://www.chicagotribune.com/news/
sns-rt-us-gaymarriage-washingtontre81c15l-20120213,0,900211.story. Finally, the District
of Columbia enacted a same-sex marriage ordinance in 2009. See D.C.
CODE § 46-401(a)
(2011). Public opinion on same-sex marriage is clearly shifting. See Frank Newport, For
First Time, Majority of Americans Favor Legal Gay Marriage, G
ALLUP (May 20, 2011),
http://www.gallup.com/poll/147662/First-Time-Majority-Americans-Favor-Legal-Gay-
Marriage.aspx (polling showed for first time that majority of Americans (53%) believe
same-sex marriage should be recognized as legally valid).
47. See Suzanne A. Kim, Skeptical Marriage Equality, 34 H
ARV. J.L. & GENDER
37, 41 (2011).
2012] MARITAL CONTRACTS 19
of family may adapt to marriage as it is functionally lived, rather than as it is
formally prescribed.”
48
Professor Nancy Polikoff, on the other hand, urges a more
pluralistic approach to family relationships, with governmental benefits and
burdens following function rather than bestowing exclusive status and privilege on
the institution of marriage.
49
Contemporary litigation about entry barriers to marriage has emphasized
the symbolic force of marriage and the public power of the label.
50
Courts have
recognized that the existence of a separate legal status with the equivalent rights
and responsibilities of marriage, but under a different name, would still
discriminate against those couples that are denied access to the symbolic power of
marriage.
51
The existence of a status that carries all the legal and economic
characteristics of marriage is still not “marriage” in the full meaning of the term.
Under that view, the public imprimatur and symbolic commitment inherent in
marriage are the essence of marriage, not a regime of shared property, tax benefits,
or spousal support.
52
In a different vein, popular understandings of marriage are also in flux. At
one end of the spectrum is the view that marriage is a lifelong covenant between a
man and a woman based on sexual fidelity and commitment to traditional values.
53
At the other end, columnist and gay activist Dan Savage rejects an absolute rule of
48. Id. at 79.
49. N
ANCY D. POLIKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING
ALL FAMILIES UNDER THE LAW 2–3 (2008) (arguing for protection of relationships based on
demonstrated interdependence and need rather than formal marital status); see also
DiFonzo, supra note 31, at 559–65.
50. See, e.g., In re Marriage Cases, 183 P.3d 384 (Cal. 2008), superseded by
constitutional amendment, C
AL. CONST. art. I, § 7.5, amendment ruled unconstitutional by
Perry v. Brown, Nos. 10-16696, 11-16577, 2012 WL 372713 (9th Cir. Feb. 7, 2012);
Kerrigan, 957 A.2d 407; Varnum, 763 N.W.2d 862; Goodridge, 798 N.E.2d 941.
51. See, e.g., Opinions of the Justices to the Senate, 802 N.E.2d 565, 571–72
(Mass. 2004). Judge Vaughn Walker echoed that insight in holding that California’s
domestic partnership regime, which bestowed the practical benefits and burdens of marriage
on domestic partners, was nonetheless culturally and symbolically inferior compared to
marriage. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 993–94 (N.D. Cal. 2010)
(finding that “domestic partnerships exist[ed] solely to differentiate same-sex unions from
marriages”), aff’d sub nom. Perry, 2012 WL 372713.
52. For a provocative comparison of the costs of the marriage rights movement
for same-sex couples and interracial couples, see Katherine M. Franke, The Curious
Relationship of Marriage and Freedom, in M
ARRIAGE AT A CROSSROADS (Marsha Garrison
& Elizabeth S. Scott eds., forthcoming 2012).
53. The Family Leader, for example, is a self-described “Christian conservative
organization . . . always standing for God’s truth in order to strengthen the family.” Press
Release, The Family Leader, The Family Leader Unveils Presidential Candidate Pledge
Document (July 7, 2011), available at http://images.minnesotaindependent.com/The-
Family-Leader-Presidential-Pledge.pdf. It has published a “marriage vow” to be signed by
political candidates to demonstrate their support for the organization’s goals. See id. The
enactment of covenant-marriage laws in a few states allows couples to opt in to a more
binding form of marriage with more restrictive divorce laws than what would otherwise
apply. See, e.g., A
RIZ. REV. STAT. ANN. §§ 25-901 to -906 (2011).
20 ARIZONA LAW REVIEW [VOL. 54:11
sexual fidelity and argues that stability and trust, not sexual monogamy, should be
the goal of marriage.
54
The declining marriage rate in the United States reflects the changing
nature of the institution. Among the total adult population, the proportion of people
in 2009 who were married dropped to the lowest percentage on record,
55
and
married couples today no longer constitute a majority of households in the United
States.
56
A growing proportion of younger adults who have never married reflects,
in part, the increase in the age at first marriage.
57
The decline in marriage has been
the sharpest among low-income populations, and it has been particularly steep for
African Americans.
58
Conversely, marriage is still the norm for college-educated,
higher-income-earning adults, and those marriages are more stable than among the
less educated.
59
While the divorce rate has also declined in the past three decades,
it remains higher for those in the lower socioeconomic brackets.
60
Similarly, the
percentage of births to unmarried women has risen sharply in the past half-century,
with the highest percentage of single mothers occurring at the lower socio-
economic levels.
61
A number of factors contribute to the shrinking marriage rates:
a delay in marriage due to economic concerns and educational pursuits,
62
greater
54. Mark Oppenheimer, Married, With Infidelities, N.Y. TIMES, July 3, 2011, §
MM (Magazine), at 22 (discussing Savage’s rejection of a one-size-fits-all approach to
sexual mores in marriage).
55. See R
OSE M. KREIDER & RENEE ELLIS, U.S. CENSUS BUREAU, CURRENT
POPULATION REPORTS, SERIES P70-125, NUMBER, TIMING, AND DURATION OF MARRIAGES
AND
DIVORCES: 2009, at 6–8 (2011), available at http://www.census.gov/
prod/2011pubs/p70-125.pdf; Mark Mather & Diana Lavery, In U.S., Proportion Married at
Lowest Recorded Levels, P
OPULATION REFERENCE BUREAU (Sept. 2010),
http://www.prb.org/Articles/2010/usmarriagedecline.aspx (analyzing U.S. Census data and
reporting that proportion of persons 18 years and older who are married dropped to 52% in
2009, and 46% of young adults ages 25–34 have never married, surpassing the 45% who are
married).
56. See Sabrina Tavernise, Married Couples Are No Longer a Majority, Census
Finds, N.Y.
TIMES, May 26, 2011, at A22.
57. See
KREIDER & ELLIS, supra note 55, at 2, 5 (reporting that proportion of
women aged 25–29 who have never married rose from 27% to 47% between 1986 and
2009, and noting that the average age at first marriage has “increas[ed] from 23 for men and
20 for women in 1950, to 28 for men and 26 for women in 2009”).
58. Id. at 3–5; see also R
ALPH RICHARD BANKS, IS MARRIAGE FOR WHITE
PEOPLE?: HOW THE AFRICAN AMERICAN MARRIAGE DECLINE AFFECTS EVERYONE 5–16
(2011);
CHERLIN, supra note 30, at 159–74.
59. See C
HERLIN, supra note 30, at 168 (noting that the divorce rate has fallen for
college-educated women while holding steady or rising for women without college
degrees).
60. C
HERLIN, supra note 30, at 166–69; KREIDER & ELLIS, supra note 55, at 11.
61. The share of births to unmarried women rose from 5% in 1960 to 41% in
2008, but the percentages vary dramatically by race: 72% of black women giving birth in
2008 were unmarried, compared to 53% of Hispanic women and 29% of white women. See
P
EW RESEARCH CTR., THE DECLINE OF MARRIAGE AND RISE OF NEW FAMILIES, at iii, 10
(2010), available at http://pewsocialtrends.org/files/2010/11/pew-social-trends-2010-
families.pdf.
62. See C
HERLIN, supra note 30, at 159–74 (noting a rise in age at first marriage,
an increase in cohabitation, and the impact of the economic downturn); K
REIDER & ELLIS,
2012] MARITAL CONTRACTS 21
social acceptance of unmarried cohabitation and unmarried parenthood,
63
and,
perhaps, a growing sense that marriage is unnecessary.
64
The economic benefits of marriage are also changing. In the past, when
fewer wives worked and husbands had greater earning power and more education,
“marriage enhanced the economic status of women more than that of men.”
65
That
reality, along with the persistence of gender roles in marriage, weakened the
bargaining power of women before and after marriage.
66
Today, although the wage
gap between men and women has decreased only slightly,
67
women have exceeded
men in education and income growth over the last four decades and have reached
near parity with men as a percentage of the workforce.
68
In almost a quarter of
marriages, wives are now the higher-wage earners.
69
Moreover, married women
have achieved the same or a higher education level than their husbands in a
majority of marriages today, a reversal of the comparative education levels in
1970.
70
Unlike earlier times, when marriage enhanced the economic status of
women more than men, the economic benefits derived from marriage today appear
supra note 55, at 5 (reporting that median age for first marriages has climbed steadily to 28
years of age for men and 26 years of age for women); Rose M. Kreider, Increase in
Opposite-Sex Cohabiting Couples from 2009 to 2010 in the Annual Social and Economic
Supplement (ASEC) to the Current Population Survey (CPS) 1 (Sept. 15, 2010)
(unpublished manuscript) (on file with Arizona Law Review) (unmarried cohabitation
jumped to 7.5 million in 2010, an increase of 13% from 2009).
63. See Mather & Lavery, supra note 55.
64. A Pew Research Center survey from 2010 reports that 39% of Americans
view marriage as becoming obsolete, compared with 28% in 1978. See P
EW RESEARCH
CTR., supra note 61, at i.
65. D’V
ERA COHN & RICHARD FRY, PEW RESEARCH CTR., WOMEN, MEN AND THE
NEW ECONOMICS OF MARRIAGE 1 (2010), available at http://pewsocialtrends.org/
files/2010/10/new-economics-of-marriage.pdf.
66. Several commentators have explored this theme in the context of premarital
agreements. See generally Barbara Ann Atwood, Ten Years Later: Lingering Concerns
About the Uniform Premarital Agreement Act, 19 J.
LEGIS. 127 (1993); Brod, supra note 10.
67. Among full-time, year-round workers in 2009, women’s median earnings
rose to 78.2% of men’s earnings. D
AVID M. GETZ, U.S. CENSUS BUREAU, AMERICAN
COMMUNITY SURVEY BRIEFS, SERIES ACSBR/09-3, MEN’S AND WOMEN’S EARNINGS FOR
STATES AND METROPOLITAN STATISTICAL AREAS: 2009, at 1 (2010), available at http://
www.census.gov/prod/2010pubs/acsbr09-3.pdf. In nine states, women’s earnings were 80%
or more of men’s earnings. Id. at 4 tbl.1.
68. See C
OHN & FRY, supra note 65, at 1 (reporting that median household
incomes of married men, married women, and unmarried women were about 60% higher
than their counterparts in 1970, but household income for unmarried men rose only by
16%); P
EW RESEARCH CTR., supra note 61, at ii (reporting that, in the last 50 years, “women
have reached near parity with men as a share of the workforce and have begun to outpace
men in educational attainment”).
69. C
OHN & FRY, supra note 65, at 1.
70. Id.
22 ARIZONA LAW REVIEW [VOL. 54:11
to be greater for men.
71
Presumably, the relative bargaining power of men and
women may be shifting as well.
72
B. Marriage in the Context of Spousal Contracts
With the institution of marriage itself in flux, the divergence in
enforcement standards for marital contracts is not surprising. State courts
considering the enforcement of marital agreements have expressed a panoply of
views about the meaning of marriage. Court opinions are rich with judicial
aphorisms and asides about the meaning of this most “sacred” of human
relationships.
73
1. Marriage as Fixed Status
The gendered hierarchy that was at the core of the doctrine of coverture
still permeates the law. As Blackstone famously pronounced:
By marriage, the husband and wife are one person in law: that
is, the very being or legal existence of the woman is suspended
during the marriage, or at least is incorporated and consolidated into
that of the husband; under whose wing, protection, and cover, she
performs everything; and is therefore called in our law-French, a
feme covert, and is said to be under the protection and influence of
her husband, her baron, or lord; and her condition during her
marriage is called her coverture.
. . . .
. . . For this reason, a man cannot grant anything to his wife, or enter
into covenant with her: for the grant would be to suppose her
separate existence; and to covenant with her, would be only to
covenant with himself . . . .
74
While the common law principle of a married woman’s incapacity is clearly
unacceptable in modern Western society, the shadow of coverture hovers over
much of our law.
Because public policy favored marriage as a lifelong status, premarital or
marital contracts that prescribed the economic consequences of divorce were
traditionally held to be void.
75
Although public policy no longer opposes
enforcement of all divorce-oriented agreements, modern courts still invoke it to
71. Id.
72. For a thoughtful exploration of the declining marriage rate as a function of
the unavailability of suitable men, see Ira Mark Ellman, Marital Roles and Declining
Marriage Rates, 41 F
AM. L.Q. 455 (2007).
73. Bedrick v. Bedrick, 17 A.3d 17, 27 (Conn. 2011) (“Marriage is ‘intimate to
the degree of being sacred. It is an association that promotes a way of life . . . a harmony in
living . . . a bilateral loyalty . . . .’” (alterations in original) (quoting Griswold v.
Connecticut, 381 U.S. 479, 486 (1965))).
74. 1
EHRLICH’S BLACKSTONE 83–84 (J. W. Ehrlich ed., 1959).
75. See, e.g., McCarthy v. Santangelo, 78 A.2d 240, 241 (Conn. 1951) (“The
state does not favor divorces. Its policy is to maintain the family relation as a life status.”
(citations omitted)).
2012] MARITAL CONTRACTS 23
invalidate one-sided agreements that make divorce especially attractive to one
spouse.
76
A close cousin of the theme that public policy should protect marriage is
the premise that marriage is an immutable status—a marital contract that modifies
the essential meaning of marriage is void.
77
In Ohio, for example, a statute
prohibits a husband and wife from contracting with each other to “alter their legal
relations.”
78
In an unpublished decision, an Ohio appellate court took the statutory
bar to an illogical extreme. In Hoffman v. Dobbins, the husband and wife entered
into an antenuptial agreement barring both of them from all rights of inheritance
upon the death of either.
79
Three years into their marriage, the parties executed an
amendment to the antenuptial to revoke the terms barring inheritance, apparently
intending to restore their rights in one another’s estate as a surviving spouse.
80
When the husband died a few years later, his children from a former
relationship successfully argued that the attempted amendment to the antenuptial
agreement during the parties’ marriage was void under Ohio law as an invalid
marital contract.
81
The trial and appellate courts agreed, relying on the Ohio
statute.
82
Although a strong argument was available that the parties had intended to
reinstate the legal relations that the antenuptial contract had abrogated,
83
the court
of appeals flatly stated that “[p]ostnuptial agreements, with specific limited
exceptions, are not valid in Ohio.”
84
The court went on to explain that “[a]n
amended contract necessarily alters the legal relations of the husband and wife by
either restricting or expanding their legal rights and obligations.”
85
Assuming the
truth of the wife’s factual allegations, the result of the appellate court’s decision
was that the couple’s mutual intent was thwarted. The court disregarded their
reinstatement of inheritance rights—potentially their security for the future. The
vestiges of the doctrine of coverture reflected in the Ohio statute prevented the
widow from inheriting from her husband despite the fact that each of them had
76. See, e.g., Gartrell v. Gartrell, 908 N.E.2d 1019, 1024 (Ohio Ct. App. 2009)
(holding that a premarital agreement was void on the ground that it would encourage
divorce because the wife was to receive “a very significant monetary sum for a marriage of
very short duration”). As another court put it, “a couple that is maintaining a marital
relationship may not enter into an enforceable contract that anticipates and encourages a
future separation or divorce.” Wright v. Wright, 761 N.W.2d 443, 448 (Mich. Ct. App.
2008) (citing Day v. Chamberlain, 193 N.W. 824 (Mich. 1923)). In Wright, the doctrine was
applied to invalidate a marital contract that would have divested the wife of all marital
property in the event of divorce. In the court’s view, the contract was void since it “was
calculated to leave [the husband] in a much more favorable position to abandon the
marriage.” Id. at 449.
77. See Hoffman v. Dobbins, No. 24633, 2009 WL 3119635, at *2 (Ohio Ct.
App. Sept. 30, 2009); see also infra notes 88–96.
78. O
HIO REV. CODE ANN. § 3103.06 (2011).
79. 2009 WL 3119635, at *1.
80. Id. at *1–2.
81. Id. at *2.
82. Id.
83. See id. at *4 (Belfance, J., dissenting).
84. Id. at *2 (majority opinion) (citation omitted).
85. Id.
24 ARIZONA LAW REVIEW [VOL. 54:11
desired precisely that result.
86
Ironically, while the spouses were apparently free to
alter the economic consequences of marriage in a premarital contract, the marriage
itself imposed a disability preventing them from contractually amending their prior
agreement.
Coverture, likewise, formed a backdrop to the decision in Borelli v.
Brusseau, a case well known to family law professors.
87
There, a California court
refused a widow’s effort to enforce a contract she had entered into with her ailing
husband to be his caregiver.
88
Under the oral agreement, the husband promised to
leave the bulk of his separate property to his wife by will if she would attend to his
physical and medical needs for the duration of his illness so that he would not have
to spend time in a convalescent hospital.
89
The wife did in fact care for the
husband at home until his death, but he did not follow through on his part of the
bargain. Instead, he left his considerable estate to his daughter from a prior
marriage.
90
Interestingly, the couple had signed a premarital agreement that
presumably protected the husband’s separate assets, a fact that did not figure in the
court’s holding.
91
In her suit for specific performance, the widow urged the court to
abandon precedents that were “based on outdated views of the role of women and
marriage.”
92
Both the trial court and the court of appeals, however, reasoned that
the wife had a duty to care for her ill husband as a function of the marriage
relationship. For that reason, the contract failed for lack of consideration because
“[p]ersonal performance of a personal duty created by the contract of marriage
does not constitute a new consideration supporting the indebtedness alleged in this
case.”
93
While the requirement of consideration for marital contracts is often a
challenging inquiry in general,
94
the Borelli court made clear that it was
vindicating an important policy about marriage:
86. See id.; see also In re Estate of Shaffer, No. 08-0653, 2009 WL 606003, at
*1–2 (Iowa Ct. App. Mar. 11, 2009) (holding that marital agreements cannot waive
surviving spousal rights to an elective share of other spouse’s estate, although such rights
can be waived through premarital agreements).
87. 16 Cal. Rptr. 2d 16 (Cal. Ct. App. 1993). Several family law casebooks
feature Borelli as a principal case. See, e.g., L
ESLIE JOAN HARRIS ET AL., FAMILY LAW 94
(4th ed. 2010); H
ARRY D. KRAUSE ET AL., FAMILY LAW: CASES, COMMENTS, AND QUESTIONS
217 (6th ed. 2007); P
ETER N. SWISHER ET AL., FAMILY LAW: CASES, MATERIALS, AND
PROBLEMS 139 (2d ed. 1998).
88. Borelli, 16 Cal. Rptr. 2d at 20.
89. Id. at 17–18.
90. Id. at 18.
91. Id. at 23 n.2 (Poché, J., dissenting).
92. Id. at 19 (majority opinion).
93. Id. at 20.
94. Unlike premarital agreements, agreements entered into during marriage need
consideration other than the marriage itself. Bratton v. Bratton, 136 S.W.3d 595, 600 (Tenn.
2004). The doctrine may require courts to assess the mutuality of the spouses’ exchange,
see, e.g., Simmons v. Simmons, 249 S.W.3d 843, 846–47 (Ark. Ct. App. 2007) (holding
that postnuptial agreement containing unilateral promise by husband to convey separate
2012] MARITAL CONTRACTS 25
Whether or not the modern marriage has become like a business,
and regardless of whatever else it may have become, it continues to
be defined by statute as a personal relationship of mutual support.
Thus, even if few things are left that cannot command a price,
marital support remains one of them.
95
The court added that negotiations in the form of sick-bed bargaining “are
antithetical to the institution of marriage as the Legislature has defined it.”
96
The duty of care recognized in Borelli may be gender-neutral, but the
precedents establishing the duty were steeped in the gender-specific regime of
coverture.
97
In Borelli, the fact of marriage disabled the widow from collecting on
her contract to provide home care to her ailing husband, a contract that ironically
would have altered the terms of the couple’s premarital agreement. Had the
husband hired a stranger to provide the services, that person presumably would
have had a viable claim against the estate. By refusing to enforce the marital
contract for the benefit of Mrs. Borelli, the court in effect held that the surviving
widow had a “pre-existing . . . nondelegable duty to clean the bedpans herself.”
98
While the holding may be a function of the court’s disapproval of bargaining at the
brink of death, it leaves open the possibility that other services performed within a
marriage may be deemed beyond the realm of contract. In a related vein, several
states statutorily bar married couples from altering the law of spousal support.
99
As
a practical matter, such measures may be designed to reduce the number of people
on public assistance, but as symbolic measures, they shape the meaning of
marriage. In other words, the potential legal duty to support a former spouse
becomes an inherent and immutable feature of the marital relationship.
property to wife failed for lack of consideration), or to decide whether forbearance from
filing for divorce is adequate consideration, see, e.g., Bedrick v. Bedrick, 17 A.3d 17, 27 n.5
(Conn. 2011) (noting question but not deciding whether forbearance from bringing divorce
action and continuation of marriage was adequate consideration for marital agreement); In
re Marriage of Tabassum, 881 N.E.2d 396, 408–09 (Ill. App. Ct. 2007) (holding that a delay
in filing for divorce for only a few months was valid consideration for marital agreement).
95. Borelli, 16 Cal. Rptr. 2d at 20.
96. Id.
97. The U.S. Supreme Court described the disabilities of married women in an
early decision: “[T]he legal existence of the wife during coverture being merged in that of
the husband; and . . . the wife was incapable of making contracts, of acquiring property or
disposing of the same without her husband’s consent.” Thompson v. Thompson, 218 U.S.
611, 614–15 (1910).
98. Borelli, 16 Cal. Rptr. 2d at 20 (Poché, J., dissenting).
99. See, e.g., C
AL. FAM. CODE § 1620 (2011) (providing that spousal agreement
cannot alter legal relations except for terms affecting property); M
ONT. CODE ANN. § 40-2-
303 (2011) (providing that spouses cannot contractually alter legal relations except as to
property or for immediate separation and support);
N.M. STAT. ANN. § 40-2-8 (2011)
(same); O
KLA. STAT. tit. 43, § 205 (2011) (same); S.D. CODIFIED LAWS § 25-2-13 (2011)
(same).
26 ARIZONA LAW REVIEW [VOL. 54:11
2. Marriage as Confidential Relationship
In disputes over marital agreements, courts frequently expound on the
meaning of marriage as a “confidential” or “fiduciary” relationship.
100
While the
terms carry distinct meanings in trust law,
101
they are often used interchangeably
when used to describe the special nature of the marital relationship.
102
The
confidential marriage relationship was an explicitly gendered vision in older cases
because of the husband’s dominant economic authority over the wife.
103
Today, the
confidential relationship is typically described as triggering gender-neutral duties
of fidelity, honesty, good faith, and fair dealing.
104
More pessimistically, marriage
may be viewed as a perilous status fraught with risk because a vulnerable spouse
may be the victim of coercion and overreaching.
105
Courts and legislators may
heighten the standard of evidence, manipulate the burden of proof, or impose
timing requirements as a way of accommodating this vision of marriage.
106
100. In a few states, no confidential relationship per se is presumed to exist
between spouses, but it can be established by showing that one spouse is clearly dominant
and the other dependent. See, e.g., Lasater v. Guttmann, 5 A.3d 79, 93–96 (Md. Ct. Spec.
App. 2010) (holding that spouses are not true fiduciaries and are presumed not to occupy a
confidential relationship). At least one court has held that a fiduciary relationship between
spouses may terminate if one or both spouses are represented by legal counsel. See, e.g.,
Dawbarn v. Dawbarn, 625 S.E.2d 186, 191 (N.C. Ct. App. 2006).
101. See 1 A
USTIN WAKEMAN SCOTT & WILLIAM FRANKLIN FRATCHER, THE LAW
OF
TRUSTS § 2.5 (4th ed. 1987) (distinguishing affirmative duties of fiduciary relationship
from “merely confidential relation”); see also Lasater, 5 A.3d at 93–94 (citing S
COTT &
FRATCHER, supra, § 2.5).
102. See Dawbarn, 625 S.E.2d at 191 (holding that in “fiduciary relationship”
between spouses, each has a duty of full disclosure to the other); Bratton v. Bratton, 136
S.W.3d 595, 601 (Tenn. 2004) (using “confidential” and “fiduciary” interchangeably).
103. See In re Estate of Harber, 449 P.2d 7, 16 (Ariz. 1969) (holding that a
marriage relationship is confidential, the husband is in a position analogous to a trustee, and
when a postnuptial contract is challenged by his wife on grounds of unfairness, he has a
burden to prove by clear and convincing evidence that the agreement is not unfair or
inequitable); Sande v. Sande, 360 P.2d 998, 1001 (Idaho 1961) (noting that in transactions
between husband and wife, the husband, who is manager of community property, stands in
fiduciary relationship to his wife (citations omitted)).
104. See, e.g., Ansin v. Craven-Ansin, 929 N.E.2d 955, 965 (Mass. 2010) (stating
that each spouse owes a duty of “absolute fidelity” to the other (citing Krapf v. Krapf, 786
N.E.2d 318, 323 (Mass. 2003))); Bratton, 136 S.W.3d at 601 (marital relationship is a state
of “special confidence and trust, requiring the utmost good faith and frankness in their
dealings with each other” (quoting In re Estate of Gab, 364 N.W.2d 924, 926 (S.D. 1985))).
105. According to the court in Pacelli v. Pacelli, mid-marriage agreements are
“pregnant with the opportunity for one party to use the threat of dissolution ‘to bargain
themselves into positions of advantage.’” 725 A.2d 56, 62 (N.J. Super. Ct. App. Div. 1999)
(quoting Mathie v. Mathie, 363 P.2d 779, 783 (Utah 1961)).
106. In California, the implications of the confidential marital relationship for
marital agreements are spelled out by legislation. See, e.g., C
AL. FAM. CODE § 721 (2011)
(providing that spouses can contract with one another regarding property rights at death or
divorce; spouses are in fiduciary relationship with highest duty of good faith and fair
dealing; and neither spouse shall take unfair advantage); C
AL. PROB. CODE § 143(a) (2011)
(providing that waiver of rights at death by agreement is enforceable unless done without
disclosure or without independent legal representation for the surviving spouse). The
2012] MARITAL CONTRACTS 27
In Ansin v. Craven-Ansin, the Massachusetts Supreme Judicial Court
addressed the meaning of the marriage relationship when it faced head-on “the
long-deferred question of first impression” whether marital agreements should be
recognized.
107
The case concerned the validity of a marital agreement entered into
by a couple after experiencing significant discord in the marriage. The agreement,
which spelled out the economic rights of the spouses in the event of divorce, was a
vehicle for salvaging the marriage.
108
In the agreement, the wife disclaimed
interest in the husband’s considerable assets in exchange for a substantial payment
in the event of divorce and other financial benefits.
109
Importantly, each party was
represented by legal counsel during the negotiations, and the wife’s lawyer
successfully bargained for significant concessions during the negotiations.
110
When
the parties’ marriage ultimately foundered, the wife argued that marital agreements
should be declared void as against public policy because they are “innately
coercive, usually arise when the marriage is already failing, and may encourage
divorce.”
111
The court rejected the wife’s categorical approach, noting that “a marital
relationship need not vitiate contractual rights between the parties.”
112
Differentiating both separation agreements and premarital agreements, however,
the court concluded that marital agreements require higher scrutiny. In the
premarital context, parties are free to reject an unsatisfactory agreement. At the
time of the separation agreement, in turn, the marriage has failed.
113
With the
marital agreement, in contrast, a party may use the threat of divorce to obtain an
advantage over the other party. As the court put it, “The circumstances
surrounding marital agreements . . . are ‘pregnant with the opportunity for one
party to use the threat of dissolution ‘to bargain themselves into positions of
advantage.’’”
114
In the court’s view, marital agreements are different because they
California Legislature has been particularly active in the realm of premarital agreements.
See C
AL. FAM. CODE § 1615(c) (2011) (codifying rule that voluntariness for premarital
agreement requires representation by independent counsel or written waiver, at least seven
days between presentation of agreement and signing, and information about basic effect of
agreement if unrepresented by counsel). At least one state presumptively treats a marital
agreement as unenforceable if either party seeks a divorce within two years of signing. See,
e.g., M
INN. STAT. § 519.11(1a)(d) (2011).
107. 929 N.E.2d at 961.
108. The court explained that the “husband promised his wife that he would
recommit to the marriage if she would sign a marital agreement. She agreed to do so, she
said, in an attempt to preserve the marriage and the family.” Id. at 960.
109. With marital assets valued at $19 million, the wife was to receive $5 million
at divorce, 30% of appreciation of marital assets from time of agreement to time of divorce,
free use of marital home for one year, medical insurance, and beneficial interest in her
husband’s life insurance policy during marriage. Id. at 960–61.
110. Id. at 964.
111. Id. at 962 (internal quotation marks omitted).
112. Id. at 961–62.
113. Id. at 962–63. The court drew on the ALI’s work for some of its reasoning
but departed from the ALI in differentiating marital agreements from premarital
agreements. See id. at 963 n.8.
114. Id. at 963 (quoting Pacelli v. Pacelli, 725 A.2d 56, 62 (N.J. Super. Ct. App.
Div. 1999)).
28 ARIZONA LAW REVIEW [VOL. 54:11
are entered into during the marriage when “each spouse owes a duty of absolute
fidelity to the other.”
115
Moreover, the court emphasized, marital agreements are
executed “without the safeguards attendant to divorce proceedings.”
116
The Ansin court announced detailed standards for marital agreements,
drawing heavily on the work of the American Law Institute.
117
In addition to the
ordinary prohibitions against fraud and coercion, the Ansin court mandated that
each party have the opportunity to obtain separate legal counsel, that full financial
disclosure be made before execution, that waivers of rights be knowing and
voluntary, and that the terms of the agreement be fair and reasonable at execution
and at enforcement.
118
Importantly, the court placed the burden of proof on the
party seeking to enforce the agreement, in effect setting up a presumption of
invalidity.
119
In assessing the fairness and reasonableness of the agreement at the time
of the divorce, the court made clear that a marital contract need not provide for a
division of assets that would have been obtained had the parties litigated without
an agreement.
120
Nevertheless, the court pointed to the range of factors relevant to
the equitable distribution scheme in Massachusetts as an appropriate measure.
121
In
other words, the Ansin court endorsed a searching inquiry about the fairness of the
terms of a marital agreement while leaving few constraints on judicial discretion.
On the facts before it, the court found that the agreement met the announced
criteria and ordered specific enforcement.
122
The court was strongly influenced by
the fact that the wife had been represented by counsel and had conceded that she
understood the rights she was waiving at the time of executing the agreement.
123
The message of Ansin is that marriage not only imposes obligations of
good faith, but also creates unique risks of bad faith transactions. Placing the
burden on the party defending a marital agreement and requiring broad judicial
review for fairness and reasonableness inevitably creates uncertainty. While the
decision on the merits shows that the standard is not impossible to satisfy, the
Ansin framework subordinates contractual autonomy and predictability to the duty
of fair dealing inherent in the marriage relationship.
The confidential relationship of spouses was equally important in the
Connecticut case of Bedrick v. Bedrick.
124
Unlike the facts in Ansin, the agreement
in Bedrick was executed many years before the parties’ divorce and before the
115. Id. at 965 (citing Krapf v. Krapf, 786 N.E.2d 318, 323 (Mass. 2003)).
116. Id.
117. Id. at 963; see also ALI
PRINCIPLES, supra note 24, §§ 7.01–08.
118. 929 N.E.2d at 963–64.
119. Id. at 964.
120. Id. at 969.
121. In explaining the fairness at enforcement standard, the court stated that a
judge may consider such factors as the length of the marriage, conduct of the parties during
the marriage, contributions of the parties to the acquisition of assets, and economic need of
the parties and children. Id. at 968–69 & n.20 (citations omitted).
122. Id. at 964–69.
123. See id. at 966–67.
124. 17 A.3d 17 (Conn. 2011).
2012] MARITAL CONTRACTS 29
birth of their son.
125
Under the terms of the agreement, the wife, who was not
represented by counsel,
126
was to receive a modest settlement and no spousal
maintenance, leaving the husband with the bulk of the marital assets.
127
The trial
court, expressing serious doubts about the enforceability of postnuptial agreements
in general,
128
held that the agreement was unenforceable for a range of reasons.
129
The Connecticut Supreme Court made clear at the outset that postnuptial
agreements promote the private resolution of family issues and are consistent with
public policy: “By alleviating anxiety over uncertainty in the determination of
legal rights and obligations upon dissolution, postnuptial agreements do not
encourage or facilitate dissolution; in fact, they harmonize with our public policy
favoring enduring marriages.”
130
Nevertheless, the court laid the foundation for a
rule of heightened scrutiny by observing that marriage is “one of the most
fundamental of human relationships,” and warning that “[c]ourts simply should not
countenance either party to such a unique human relationship dealing with each
other at arms’ length.”
131
In Bedrick, as in Ansin, the unique nature of marriage
meant that married people might let their guard down during negotiations.
According to the court, spouses may act with less caution when contracting about
property or support during a marriage than they would prior to marriage, and
certainly with less caution than they would exercise with an ordinary contracting
party.
132
The Bedrick court held that enforcement of a postnuptial agreement
should occur “only if [the agreement] complies with applicable contract principles,
and the terms of the agreement are both fair and equitable at the time of execution
and not unconscionable at the time of dissolution.”
133
This standard translated into
some familiar requirements. A postnuptial agreement must be voluntary and free
of fraud and undue influence, and each spouse must be given full disclosure of
property and financial obligations of the other spouse.
134
More significantly, the court expanded on the required fairness of
postnuptial agreements, announcing different standards for the time of execution
125. The divorce action in Bedrick was filed in 2007, about 18 years after the
most recent amendment of the parties’ postnuptial agreement. See id. at 21–22.
126. Id. at 28 n.6.
127. The wife was to receive a $75,000 settlement; the value of the parties’
combined assets, consisting primarily of a car wash business, was close to $1 million. Id. at
22.
128. The trial court viewed postnuptial agreements as “‘inherently coercive’
because one spouse typically enters into it in order to preserve the marriage, while the other
is primarily motivated by financial concerns.” Id.
129. According to the trial court, the agreement lacked adequate consideration,
the wife did not knowingly waive her rights, and enforcement would be unjust in light of
changed circumstances. Id.
130. Id. at 24.
131. Id. at 26–27 (citations omitted).
132. Id. at 27.
133. Id.
134. As the court explained, “This mandatory disclosure requirement is a result of
the deeply personal marital relationship.” Id. at 28.
30 ARIZONA LAW REVIEW [VOL. 54:11
and the time of enforcement. Fairness at time of execution, in the court’s view,
means a thorough consideration of circumstances, including the agreement’s terms
and complexity, disparity in assets, the parties’ respective sophistication, access to
counsel, and the time each spouse had to reflect on the agreement’s terms.
135
Determining whether an agreement is unconscionable, on the other hand,
requires a more substantive inquiry about the impact of the agreement on the
parties. In Bedrick, the court made clear that mere unfairness or inequality in terms
would not be enough. Instead, the question of unconscionability “is analogous to
determining whether enforcement of an agreement would work an injustice.”
136
The court added that “[u]nforeseen changes in the relationship, such as having a
child, loss of employment or moving to another state, may render enforcement of
the agreement unconscionable.”
137
On the facts before it, the Connecticut Supreme
Court agreed with the trial court that the agreement was unconscionable at the time
the husband sought to enforce it in light of the dramatic change in the parties’
economic circumstances.
138
The Connecticut court, like the Massachusetts court, viewed marriage as a
confidential relationship with duties of utmost trust and good faith. Both courts
distinguished marital agreements from premarital agreements and established a
more stringent standard for agreements entered into during marriage because of the
perceived risks of unfair advantage and distortions of the bargaining process. The
standards announced in both decisions attempt to address the danger that one
spouse will be vulnerable to the financial demands of the other in order to continue
the marriage.
At the same time, in assessing the fairness of an agreement at
enforcement, the Connecticut court’s approach in Bedrick is more deferential to
the parties’ contractual autonomy by requiring the party challenging the agreement
to prove “unconscionability,” not mere unfairness or unreasonableness, and the
burden of proof remained with the challenger. Still, the standard of
“unconscionability,” as used in Bedrick, clearly invites post hoc evaluation of the
substance of marital agreements. Ironically, the agreement in Ansin withstood the
more demanding standards announced there while the agreement in Bedrick failed
under the more forgiving measure of that case. The difference in outcome is likely
the result not only of the stronger showing of unfairness in Bedrick, but also of the
key fact that both parties in Ansin had independent legal representation.
The ALI’s standard for marital agreements, on which Ansin heavily
relied, would constrain judicial discretion more than does the Ansin approach
while still permitting judicial review of the terms of an agreement at enforcement
under defined circumstances. Recognizing that marriage creates distinct
interpersonal dynamics and triggers distinct public policies, the ALI Principles try
to achieve “a nuanced accommodation between the benefits of contractual
135. Id.
136. Id. (citing Crews v. Crews, 989 A.2d 1060, 1066 (Conn. 2010)).
137. Id.
138. Id. at 28–29 (explaining that the parties were 57 years old at time of trial, the
parties’ son had been born after the agreement, and the business had deteriorated).
2012] MARITAL CONTRACTS 31
autonomy, and concerns for the special context in which bargaining over the terms
of family relationships tends to occur.”
139
The ALI Principles contain detailed
procedural requirements for premarital and marital agreements that are designed to
ensure that agreements are entered into voluntarily and with full knowledge of the
rights being altered.
140
Significantly, the ALI standards place the burden of proof
on the party seeking to enforce the agreement with respect to these procedural
requirements.
141
As to substantive review, the standards permit a court to refuse
enforcement if the challenger can prove that the agreement would create a
“substantial injustice,” but only if the challenger makes a threshold showing of
circumstances that justify judicial review.
142
According to the commentary, the
ALI’s approach permits substantive review for particularly problematic situations
while “retain[ing] considerable deference to contractual freedom.”
143
Although the
ALI’s formulation has not been adopted in its entirety in any state, the policy
analysis has influenced courts as well as legislatures.
144
3. Marriage as Contract
In some jurisdictions, the goal of achieving efficiency and predictability
in marital contracts trumps the interest in protecting vulnerable spouses or in
implementing substantive marriage policy. Marriage, in other words, becomes a
malleable relationship in which the spouses can engage in (almost) arms-length
bargaining about (almost) any facet of the relationship. Pennsylvania, in particular,
139. ALI PRINCIPLES, supra note 24, § 7.02 cmt. a. The commentary to the ALI
Principles emphasizes that cognitive capacity to enter family contracts, as compared to
commercial contracts, is limited because of the unique emotional dynamics and the
difficulty of contracting for a future and undesired contingency. Moreover, family contracts
typically undermine public policies—expressed by default rules—that protect persons who
enter into family relationships. Id. § 7.02 cmts. b–c.
140. Id. § 7.04 (requiring the party seeking to enforce the agreement to show that
the other party’s consent was informed and not obtained under duress and creating a
rebuttable presumption that consent is informed and voluntary if certain showings are
made). The rebuttable presumption of section 7.04 is triggered if both parties had a
reasonable opportunity to obtain independent legal counsel, and, if not represented by
counsel, the agreement clearly describes the nature of the rights being altered. See id. §
7.04(3)(b)–(c). Moreover, the presumption also requires that a premarital agreement be
executed 30 days before the parties’ marriage. Id. § 7.04(3)(a). Finally, the standard
provides that a marital agreement may be rescinded within 30 days of execution. Id. §
7.04(4).
141. Id. § 7.04(2).
142. Id. § 7.05(2) (requiring a challenger to show the passage of a prescribed time
period, the birth or adoption of children, or an unanticipated change in circumstances).
143. Id. § 7.05 cmt. a.
144. The Massachusetts Supreme Judicial Court relied heavily on the ALI
commentary in Ansin v. Craven-Ansin, 929 N.E.2d 955, 963 (Mass. 2010), but stopped
short of endorsing the ALI’s specific approaches. See supra text accompanying notes 117–
19; see also Eyster v. Pechenik, 887 N.E.2d 272, 280 (Mass. App. Ct. 2008) (quoting ALI
as to placing distinctive limitations on people’s judgments in family contracts). California’s
amendments of its Uniform Premarital Agreement Act, including its required waiting
period, are similar to those recommended by the ALI. See infra note 160 and accompanying
text.
32 ARIZONA LAW REVIEW [VOL. 54:11
has established itself as a leading pro-enforcement jurisdiction with regard to
premarital and marital agreements. In Simeone v. Simeone, the Pennsylvania
Supreme Court reformulated the common law standards governing premarital
agreements, noting that “[p]aternalistic presumptions and protections that arose to
shelter women” have been “appropriately” discarded.
145
The court held that
traditional contract rules should be applied to premarital agreements with one
exception. Because parties to premarital agreements “stand in a relation of mutual
confidence and trust,” they must make a full and fair disclosure of their financial
resources.
146
Apart from that narrow concession, the court refused to endorse other
safeguards, including any inquiry into the substance of the agreement or the
parties’ understanding of the rights being relinquished.
147
The Pennsylvania Supreme Court extended Simeone to the postnuptial
context in Stoner v. Stoner.
148
Although Stoner involved a separation agreement
rather than a marital agreement, the court’s language and reasoning were broad
enough to encompass the latter. As the court put it, the question before it was
“whether a postnuptial agreement is a valid and enforceable contract even though
it did not disclose the statutory rights to which a spouse is entitled.”
149
Echoing the
philosophy of Simeone, the court reiterated that traditional contract principles
should govern:
We decline to resurrect the paternalistic approaches to evaluating
marriage contracts by requiring Husband to explain to Wife the
statutory rights that she may be surrendering. Such an approach
assumes that Wife lacks the intelligence or ability to protect her own
rights. Instead, we endorse the parties’ rights to freely
contract . . . .
150
In Stoner, as in Simeone, the court acknowledged that spouses stand in a
position of “mutual confidence and trust” at the time of contracting and must make
full disclosure of financial resources.
151
The confidential relationship of spouses,
however, did not justify requiring that parties be advised of their statutory rights.
152
Similarly, a few other courts have stopped short of requiring a showing that a
spouse acted with knowledge of rights being relinquished in a marital agreement,
reasoning instead that a party to a contract is presumed to know and understand its
contents.
153
145. 581 A.2d 162, 165 (Pa. 1990) (enforcing a prenuptial agreement that
provided wife with limited support payments).
146. Id. at 166–67.
147. Id. (rejecting the wife’s argument for a per se requirement of independent
legal counsel).
148. 819 A.2d 529, 533 (Pa. 2003).
149. Id. at 529.
150. Id. at 533.
151. Id.
152. The court explained that “the right balance is struck by requiring full
disclosure of financial assets, in conjunction with the protection of traditional contract
remedies for fraud, misrepresentation or duress.” Id.
153. See, e.g., In re Estate of Smid, 756 N.W.2d 1, 8–10 (S.D. 2008) (enforcing
postnuptial waiver of rights at death, despite wife’s showing that she was not represented by
2012] MARITAL CONTRACTS 33
The limited judicial inquiry in Stoner and kindred decisions diverges
markedly from those courts that scrutinize spousal agreements not only to ensure
financial disclosure, but also to require knowledge of rights being waived and
substantive fairness in result.
154
The message of Stoner is that spouses should act
with due diligence to protect their own self-interest. As a function of the marital
relationship, they can appropriately expect a truthful disclosure of financial assets,
but beyond financial disclosure, ordinary rules of contract govern.
Courts in a few states have taken the position that the pro-enforcement
stance of the UPAA is appropriate for determining enforceability of marital
contracts.
155
The UPAA provides that premarital agreements are unenforceable if
the challenger proves that the agreement was not voluntary or that the agreement
was unconscionable when executed and the challenging party was not provided
adequate financial disclosure.
156
In other words, unconscionability by itself is not a
basis for voiding an agreement. Moreover, unconscionability in result is not a basis
for challenge at all. The only window for challenging the fairness of an agreement
at enforcement is the UPAA’s narrow provision refusing to enforce a term about
spousal support if it makes one party a public charge.
157
Finally, the Act does not
explicitly require that a party to a premarital agreement understand the nature of
any rights being waived.
The UPAA has been the target of vigorous criticism,
158
and half the
adopting states have changed the black letter of the Act in their own
jurisdictions.
159
Variations in adopting states include stronger procedural
safeguards,
160
broader substantive review of agreements,
161
and increased
independent counsel, was presented with waiver by husband’s attorney when husband was
terminally ill, and did not understand nature of rights being waived). The majority decision
in Smid prompted a dissenting justice to accuse the majority of embracing a “bleak and
mercantile view of marriage.” Id. at 14 (Konenkamp, J., dissenting).
154. See, e.g., Bratton v. Bratton, 136 S.W.3d 595, 600 (Tenn. 2004)
(summarizing majority view as requiring that postnuptial agreements be “free from fraud,
coercion or undue influence, that the parties acted with full knowledge of the property
involved and their rights therein, and that the settlement was fair and equitable”).
155. See, e.g., V
A. CODE ANN. §§ 20-147 to -155 (2011). In at least one state,
spouses can contract for the application of the UPAA to their postmarital agreement. See
Davis v. Miller, 7 P.3d 1223, 1229–30 (Kan. 2000).
156. See U
NIF. PREMARITAL AGREEMENT ACT § 6(a), 9C U.L.A. 48–49 (2001).
157. See id. § 6(b).
158. See, e.g., Atwood, supra note 66, at 146; Bix, supra note 2, at 265; Oldham,
supra note 14 (manuscript at 1–3).
159. See generally Oldham, supra note 14 (manuscript at 4–9).
160. See, e.g., C
AL. FAM. CODE § 1615(c) (2011) (requiring independent counsel
or waiver of that right in writing; a seven-day waiting period between presentation of
agreement and time of signing; and, if unrepresented, party was fully informed in writing of
effect of agreement and rights being relinquished); C
ONN. GEN. STAT. § 46b-36g(4) (2011)
(requiring opportunity to consult legal counsel); F
LA. STAT. § 61.079(7) (2011) (permitting
challenge if agreement is involuntary or procured by “fraud, duress, coercion or
overreaching”).
161. Several states have decoupled unconscionability from nondisclosure so that
unconscionability at time of execution by itself is a basis for refusing enforcement. See, e.g.,
C
ONN. GEN. STAT. § 46b-36g(2) (2011); IOWA CODE § 596.7(2)(b) (2011); R.I. GEN. LAWS §
34 ARIZONA LAW REVIEW [VOL. 54:11
protection for spousal support.
162
The uneven enactment history of the UPAA
suggests that it diverged significantly from public policy regarding enforcement of
premarital agreements in many states. The UPAA’s existing framework, if
extended to marital agreements, would diverge even more sharply from standards
that have emerged in recent case law.
II. A BRIEF INTERNATIONAL COMPARATIVE LOOK
Many nations in continental Europe treat premarital and marital
agreements as indistinguishable, imposing the same legal standards on a
contracting couple whether the agreement is entered into before or after
marriage.
163
Compared to the law of many states within the United States,
however, European standards are less deferential to freedom of contract in order to
promote predictable property dispositions at divorce, achieve equity for spouses,
and protect family interests.
164
In general, spouses in continental Europe are given the option of selecting
among several marital property regimes, not to contract “out of a fair system,” but
“to choose between alternatives that suit different families, and between different
versions of fairness.”
165
While important national differences exist within Europe,
a common approach permits spouses to contract out of the default marital property
regime and to select from a menu of options a different regime to govern their
rights during marriage.
166
Where the default regime is a shared system, or
15-17-6(a)(2) (2011). A few states, moreover, permit challenges based on unconscionability
at enforcement. See, e.g., N.J.
STAT. ANN. § 37:2-32(c) (2011) (defining unconscionable as
leaving party without reasonable support or at standard of living far below party’s
premarital standard of living); N.D.
CENT. CODE § 14-03.1-07 (2011) (permitting court to
limit application of agreement’s terms to avoid unconscionable result).
162. In a few states, spousal support has been declared off limits. See, e.g., I
OWA
CODE § 596.5(2) (2011); N.M. STAT. ANN. § 40-3A-4(B) (2011). Others have provided
additional safeguards for spousal support. See, e.g., C
AL. FAM. CODE § 1612(c) (2011)
(providing that premarital agreement regarding spousal support is unenforceable if party
against whom enforcement is sought was not represented by independent counsel at time of
execution or if provision is unconscionable at enforcement).
163. See Margaret Ryznar & Anna Stepień-Sporek, To Have and to Hold, For
Richer or Richer: Premarital Agreements in the Comparative Context, 13 C
HAP. L. REV. 27,
42–62 (2009).
164. See id. at 52; see also Nina Dethloff, Contracting in Family Law: A
European Perspective, in T
HE FUTURE OF FAMILY PROPERTY IN EUROPE, supra note 43, at
65, 76.
165. See L
AW COMM’N, CONSULTATION PAPER NO. 198, MARITAL PROPERTY
AGREEMENTS 64 (2011) [hereinafter MARITAL PROPERTY AGREEMENTS], available at
http://www.justice.gov.uk/lawcommission/docs/cp198_Marital_Property_Agreements_Con
sultation.pdf.
166. See Dethloff, supra note 164, at 74–81. In France, on the other hand, spouses
may mix different regimes listed in the French Civil Code and may establish new regimes
not recognized by the law. See generally Ryznar & Stepień-Sporek, supra note 163, at 45–
46 (discussing various ways in which the French Civil Code recognizes significant freedom
of contract for spouses).
2012] MARITAL CONTRACTS 35
“community of property,” a major use of marital agreements is to permit spouses
to opt for separation of property during the marriage.
167
While marital agreements modifying the default property regime are
widely accepted in Europe, that is not the case for marital agreements on post-
divorce maintenance and other financial consequences of divorce.
168
Some
European countries limit agreements affecting maintenance to settlements entered
into at the time of divorce, and others refuse to recognize spousal waivers of future
maintenance.
169
Even where maintenance agreements are permitted, courts
typically scrutinize them and refuse to enforce agreements that violate stated
norms, such as “manifestly unjust, preposterous,”
170
or “highly detrimental to one
spouse.”
171
Contractual freedom with respect to other financial consequences, such
as compensatory payments after divorce, is even more limited.
172
Significantly, in many European countries, marital agreements must be
entered into before a notary.
173
European notaries, in contrast to notaries in the
United States, have training and expertise to serve as “impartial advisors” and are
generally required to “provide independent advice to both parties.”
174
Requiring
that marital agreements be executed before a notary is an effort to “ensure the
protection of the weaker and less well-informed or prepared spouse.”
175
Until recently, the United Kingdom diverged from the European
approach; its law distinguished between prenuptial and postnuptial agreements and
refused enforcement of the former as void.
176
In 2010, the U.K. Supreme Court
finally recognized the validity of prenuptial agreements, albeit in a holding that
subjects agreements to considerable judicial scrutiny for procedural and
substantive fairness.
177
In the closely watched case of Radmacher v. Granatino, the
French husband of a wealthy German heiress sought to invalidate their prenuptial
agreement to the extent necessary to give him a “needs-based” order following
167. See Dethloff, supra note 164, at 71. In Germany, for example, spouses may
choose from contractual property regimes recognized in the German Civil Code, but
bargains between spouses must not result in an unacceptably disproportionate distribution of
burdens. See id. at 78–79 (discussing policies announced by German Federal Supreme
Court). In France, by contrast, spouses are barred from changing their property regime until
it has been in force for two years, and modifications at that point must be in the interests of
the family. See id. at 76 (discussing the French Civil Code).
168. See id. at 81–84.
169. See id. at 82 (discussing law of Poland, Norway, Netherlands, and Italy).
Unlike most European nations, German law permits spouses to modify the default rules as
to maintenance and even to exclude post-divorce maintenance in its entirety. See M
ARITAL
PROPERTY AGREEMENTS, supra note 165, at 63 (discussing the German Civil Code); Franck,
supra note 9, at 247–49 (same).
170. Dethloff, supra note 164, at 82 (citation omitted).
171. Id. (citing C
ODE CIVIL [C. CIV.] art. 232, para. 2 (Fr.)).
172. In France, for example, the prestation compensatoire, a remedy to alleviate
economic disparities between spouses, cannot be waived. Id. at 83.
173. Id. at 74.
174. Id.
175. Id.
176. See M
ARITAL PROPERTY AGREEMENTS, supra note 165, at 8.
177. See Radmacher v. Granatino, [2010] UKSC 42, [2011] 1 A.C. 534.
36 ARIZONA LAW REVIEW [VOL. 54:11
their divorce. The high court rejected as “obsolete” the traditional public policy
voiding a contract providing for divorce.
178
The justices held that the judiciary’s discretionary jurisdiction to
determine the effect of an agreement remains intact, but that the court should
uphold an agreement freely entered into unless it would be unfair. As the justices
put it: “The court should give effect to a nuptial agreement that is freely entered
into by each party with a full appreciation of its implications unless in the
circumstances prevailing it would not be fair to hold the parties to their
agreement.”
179
Factors relevant to the crucial fairness determination include the
timing of the agreement, financial disclosures, the parties’ understanding of the
terms and whether they acted on advice of counsel, the emotional dynamics of the
execution of the agreement, and any impact of the agreement on minor children.
180
The court noted that the parties’ contractual autonomy deserves weight because
“[i]t would be paternalistic and patronising to override their agreement simply on
the basis that the court knows best.”
181
At the same time, agreements attempting to
address contingencies of the couple’s future relationship may be unfair because of
changed circumstances.
182
Significantly, an earlier decision from the Privy Council had ruled that
postnuptial agreements should be subject to less judicial scrutiny than antenuptial
agreements. In MacLeod v. MacLeod, the Council reasoned that the risks of
overreaching and unfair tactics are lessened once parties marry.
183
As the Privy
Council explained:
Post-nuptial agreements . . . are very different from pre-nuptial
agreements. The couple are now married. They have undertaken
towards one another the obligations and responsibilities of the
married state. A pre-nuptial agreement is no longer the price which
one party may extract for his or her willingness to marry.
184
Prior to Radmacher, then, case law construed the dynamics of premarital
agreements to pose a higher risk for vulnerable parties than the dynamics of
bargains between people already married.
The U.K. Supreme Court in Radmacher addressed the distinctions
between marital and premarital agreements in dicta in order to clarify the law for
future cases. The court explicitly rejected the reasoning in MacLeod, noting that
there is no cause for differentiation between the two types of agreements.
185
If
premarital agreements look to events far in the future, so can marital agreements
entered into at the start of a long marriage.
186
As to the risk of duress, the court
178. Id. [52].
179. Id. [75] (citing MacLeod v. MacLeod, [2008] UKPC 64, [2010] 1 A.C. 298).
180. Id. [77–82].
181. Id. [78].
182. Id. [80].
183. MacLeod, [2008] UKPC 64, [2010] 1 A.C. 298.
184. Id. [36]; see also M
ARITAL PROPERTY AGREEMENTS, supra note 165, at 55–
57.
185. Radmacher, [2010] UKSC 42, [66], [2011] 1 A.C. 534, [66].
186. Id. [58–59].
2012] MARITAL CONTRACTS 37
recognized that “duress can be applied both before and after the marriage. The
same principle applies in either case.”
187
Accordingly, the court rejected the thesis
“that ante-nuptial agreements are fundamentally different from post-nuptial
agreements.”
188
The standard that Radmacher embraced is similar to those of American
jurisdictions that require courts to scrutinize agreements for substantive fairness.
189
Just as many courts have done on this side of the Atlantic, the U.K. Supreme Court
worked a compromise between respect for individual autonomy and deference to
agreements that are knowing and voluntary, and the public policies reflected in
marriage and divorce law that require protection of vulnerable parties. By
announcing that premarital and marital agreements should be evaluated under the
same standard, the court recognized that unique emotional and cognitive
vulnerabilities could come into play both before and during marriage.
Interestingly, marriage itself is waning in popularity across Europe. In
England and Wales, marriage rates have fallen to the lowest level on record.
190
Similarly, the marriage rate in both France and Germany has dropped precipitously
in the last decade and is well below that of the United States.
191
When France
created its civil unions, called a pacte civil de solidarite, or “PACS,” people
expected the new status to be most popular among same-sex couples.
192
By 2009,
however, the overwhelming majority of civil unions were between opposite-sex
couples. The informal and secular nature of the PACS, and the ease of exit as
compared to marriage, have enhanced their popularity.
193
If trends continue, new
civil unions will outnumber marriages in France.
194
III. LESSONS FOR PUBLIC POLICY
The law on marital agreements across the United States reveals deep
schisms about the meaning of the marital relationship. This lack of consensus may
be the inevitable consequence of an evolving institution, but it can produce
187. Id. [60].
188. Id. [66]. The Law Commission of England and Wales endorsed Radmacher’s
policy position as to the equal treatment of prenuptial and postnuptial agreements. See
M
ARITAL PROPERTY AGREEMENTS, supra note 165, at 56–57.
189. The court’s approach closely parallels the standards announced in Bedrick v.
Bedrick, 17 A.3d 17 (Conn. 2011). See supra notes 124–38 and accompanying text.
190. See David Batty, Marriage Rates Fall to Lowest-Ever Level, T
HE GUARDIAN
(Mar. 26, 2008, 11:08 AM), http://www.guardian.co.uk/world/2008/mar/26/gender; Jenny
Purt, Marriage Rate Falls to Record Low, T
HE INDEPENDENT (Mar. 30, 2011),
http://www.independent.co.uk/news/uk/home-news/marriage-rate-falls-to-record-low-22575
27.html.
191. Scott Sayare & Maïa de la Baume, Bliss for Many French Couples Is Now
Less Marital than Ever, N.Y.
TIMES, Dec. 15, 2010, at A1 (reporting decline in marriage
rate in France and Germany to about 4 marriages per 1000 residents, compared to rate of 6.8
marriages per 1000 residents in United States).
192. Id.
193. The PACS provide most of the economic and tax benefits of marriage but
can be terminated with the filing of a registered letter. Id.
194. Id. (reporting that civil unions already outnumber marriages in Paris’s 11th
Arrondissement).
38 ARIZONA LAW REVIEW [VOL. 54:11
considerable uncertainty in a mobile society in which people often reside in
different states over the course of their lifetimes. The judicial formulations
canvassed in Part I are a response to competing values, and courts clearly diverge
in their emphasis of particular policies.
Despite the disparity in case law, points of agreement do exist. Most
courts endorse a view that the marriage relationship, regardless of its
characterization, triggers obligations of honesty and good faith. The decisions
impose higher standards for marital agreements than for ordinary commercial
contracts. By broad consensus, those obligations include full disclosure of
financial circumstances before an agreement is finalized. Most courts also require
that a party to a marital agreement know and understand the nature of the rights
being waived, with some going further by placing the burden of proof on the party
seeking to enforce the agreement. Finally, many courts evaluate the impact of an
agreement at the time of enforcement, but the fairness standards vary.
On the other hand, states remain divided on whether to treat marital
agreements differently from premarital agreements. Outlier jurisdictions embrace a
view of marriage as a status whose essential relations are beyond the realm of
contract by spouses. As shown in Borelli and Hoffman, when the status of being
married imposes a disability on the contracting spouses, that disability can work to
the advantage of one party, or that party’s estate, and to the great disadvantage of
the other spouse.
195
States that prohibit spouses from affecting post-divorce
spousal support by agreement are similarly endorsing a minority view that the
potential duty to support a former spouse is an immutable feature of marriage.
196
Such a doctrine seems clearly at odds with the cultural trend toward individualized
marriage described in Part I.
As to whether different standards ought to govern premarital and marital
agreements more generally, it is instructive that many European nations treat the
two kinds of agreements similarly. Moreover, the analysis in Radmacher is
persuasive.
197
The dynamics underlying any agreement—whether entered before or
during marriage—are highly dependent on individual circumstances, and neither
context seems inherently more likely to produce unconscionable agreements.
A spouse who has made an economic investment in the marriage, for
example, may agree to extremely unfavorable terms in order to continue the
marriage. The presence of children, in particular, can add pressure to keep the
marriage intact so as to avoid “the destruction of a family and the stigma of a
failed marriage.”
198
Likewise, a fiancée, secure in the assumption that her marriage
will last until death, may agree to very unfavorable divorce terms shortly before
195. Professor Anita Bernstein recently observed that prohibiting couples from
altering core duties of marriage by private agreement “gets in the way of private ordering,”
and she accordingly calls for “parsimony” and “transparency” in defining the “essentials of
marriage.” Anita Bernstein, Toward More Parsimony and Transparency in “The Essentials
of Marriage,” 2011 M
ICH. ST. L. REV. 83, 88.
196. See supra note 99 and accompanying text.
197. See supra notes 185–88 and accompanying text; see also ALI
PRINCIPLES,
supra note 24, § 7.01 & cmts.; MARITAL PROPERTY AGREEMENTS, supra note 165, at 56–57.
198. Pacelli v. Pacelli, 725 A.2d 56, 59 (N.J. Super. Ct. App. Div. 1999).
2012] MARITAL CONTRACTS 39
the wedding.
199
A pregnant woman may agree to risky terms in a premarital
agreement presented to her as a condition of getting married.
200
Moreover,
enforcement of either a premarital or marital agreement can produce hardship if
the parties’ circumstances have significantly changed over the course of a long
marriage.
201
Because irrational bargaining and coercive pressures can operate
before and after marriage, treating the vows themselves as triggering a separate
regime of contractual constraints seems unjustified.
A fundamental question differentiating marital and premarital agreements
is whether the fact of marriage should trigger a switch in burden of proof when the
validity of a marital agreement is challenged. Placing the burden of proof on the
enforcing party creates a presumption against the validity of the agreement, a
position embraced in some courts as an aspect of the “confidential relationship” of
spouses.
202
That approach is rooted in earlier times when spousal contracts altering
the status of marriage were strongly disfavored largely because of the presumed
vulnerability of dependent wives.
203
Marriage law, after all, was dominated by
gender-specific rights and responsibilities up until the last two decades of the 20th
century.
204
A presumption against the validity of a marital contract is arguably out of
sync with today’s norms of individualized marriage and gender equality. In light of
the “new economics of marriage” and the enhanced value of marriage to men,
205
the gender of the vulnerable party in marital contracts is becoming less
predictable.
206
Moreover, with the advent of same-sex marriage, any theory of
marital contracting that is largely shaped by perceptions of underlying gender
199. Simeone v. Simeone, 581 A.2d 162, 166 (Pa. 1990).
200. Mallen v. Mallen, 622 S.E.2d 812, 814, 817 (Ga. 2005).
201. Bedrick v. Bedrick, 17 A.3d 17, 24–26 (Conn. 2011).
202. Ansin v. Craven-Ansin, 929 N.E.2d 955, 963–64 (Mass. 2010).
203. See supra note 103 and accompanying text.
204. See generally G
ROSSMAN & FRIEDMAN, supra note 34, at 58–65; Herma Hill
Kay, From the Second Sex to the Joint Venture: An Overview of Women’s Rights and
Family Law in the United States During the Twentieth Century, 88
CALIF. L. REV. 2017,
2019–20 (2000). For an argument that formal equality has not remedied underlying
structural and societal inequalities, see Martha Albertson Fineman, Equality: Still Illusive
After All These Years, in G
ENDER EQUALITY: DIMENSIONS OF WOMEN’S EQUAL CITIZENSHIP
251, 251–53 (Linda C. McClain & Joanna L. Grossman eds., 2009).
205. See supra notes 65–72 and accompanying text.
206. Interestingly, in several of the cases discussed in this Essay, the parties
seeking to enforce the agreements were women. See, e.g., Borelli v. Brusseau, 16 Cal. Rptr.
2d 16 (Cal. Ct. App. 1993); In re Marriage of Tabassum, 881 N.E.2d 396 (Ill. App. Ct.
2007); Hoffman v. Dobbins, No. 24633, 2009 WL 3119635 (Ohio Ct. App. Sept. 30, 2009);
Radmacher v. Granatino, [2010] UKSC 42, [2011] 1 A.C. 534. Gender dynamics, of course,
have not disappeared from the world of spousal contracts. For earlier explorations of the
role of gender in premarital contracting, see Atwood, supra note 66, at 133 n.29 (noting that
the vast majority of challengers in reported cases involving premarital contracts in 1992
were women); Brod, supra note 10, at 234–40 (“[M]ost agreements will be to the advantage
of the economically superior spouse (usually a man) at the expense of the economically
weaker spouse (usually a woman).”).
40 ARIZONA LAW REVIEW [VOL. 54:11
dynamics seems, if not outdated, at least inadequate.
207
For same-sex spouses,
marital contracts may offer a practical solution to the economic uncertainty created
by disparate marriage recognition laws.
208
To be sure, the changes in the institution
of marriage do not mean that vulnerability, dependence, clouded cognition, and
unequal bargaining power have disappeared from the world of marital
contracting.
209
Still, socioeconomic shifts between men and women and the
emergence of same-sex marriage invite us to rethink traditional limits placed on
the contractual autonomy of spouses.
The experience of both the ULC and the ALI is instructive as to the
challenges of law reform affecting marriage. In the Uniform Premarital Agreement
Act, the ULC promulgated standards that veered sharply away from existing
common law and toward the realm of commercial contracts.
210
The UPAA’s
lessening of formalities for agreements, its elimination of the requirement of
consideration, and its allocation of burden of proof on the party resisting the
agreement have achieved wide acceptance. On the other hand, the UPAA’s
narrowing of the grounds for challenging a premarital agreement, particularly its
treatment of unconscionability, has been vigorously criticized, and was itself the
subject of heated debate among the Commissioners.
211
While about half the states
have enacted a version of the UPAA, many of those have diverged from the
uniform act to provide greater safeguards for fairness—both procedurally and
substantively.
212
Moreover, ambiguity in the terminology of the UPAA has led
207. See Bernstein, supra note 195, at 86 (suggesting that statutes restricting
marriage to opposite-sex unions may have had a “useful effect” by “foster[ing] more
parsimony and transparency concerning what courts call ‘the essentials of marriage’”).
208. Even in states willing to recognize a same-sex marriage from another
jurisdiction for purposes of granting a divorce, the recognition of economic rights arising
from the marriage remains uncertain. See, e.g., Christiansen v. Christiansen, 253 P.3d 153,
156–57 (Wyo. 2011) (recognizing validity of Canadian same-sex marriage for purposes of
divorce in Wyoming but emphasizing that parties were not seeking to enforce any rights
incident to their marital status).
209. For an argument that marital contracts should still be analyzed through the
prism of gender, see Younger, supra note 10, at 350 n.4 (explaining that male pronouns will
be used for parties seeking to enforce agreements and female pronouns for parties seeking
to avoid agreements because “[m]en are almost always proponents of these agreements;
women are almost always the challengers”). In her study of contemporary case law,
Professor Younger concluded that by enforcing premarital, postmarital, and cohabitation
agreements, “the courts are enabling the dominant party to acquire financial advantages and
to shift the risk of a failed relationship from him, even though he can afford to bear it, to
her, the weaker party who cannot easily bear such a burden.” Id. at 427.
210. In particular, the UPAA links unconscionability at execution with
nondisclosure of financial assets, requiring that both failings be present to void an
agreement; bars consideration of fairness at enforcement; and does not explicitly require
that each party’s consent be knowing and informed. See U
NIF. PREMARITAL AGREEMENT
ACT § 6, 9C U.L.A. 48–49 (2001); Oldham, supra note 14 (manuscript at 1–3) (criticizing
terms of UPAA and recommending revisions to enhance procedural and substantive
fairness).
211. ALI
PRINCIPLES, supra note 24, § 7.04 cmt. g (describing lack of consensus
during debates on UPAA as to role of unconscionability).
212. See supra notes 159–62 and accompanying text.
2012] MARITAL CONTRACTS 41
courts to define key terms for themselves.
213
Still, regardless of the many critiques,
the UPAA has undoubtedly shaped marriage policy by its robust embrace of
private ordering.
The ALI Principles, in turn, have been a major influence on public
discourse about family policy, but no state has adopted the ALI’s specific
proposals for marital and premarital agreements.
214
The impact of the ALI
proposals may grow over time among courts and lawmakers, but widespread
implementation across the United States seems unlikely. Adopting the complete
package of ALI recommendations would require most states to significantly
change their existing law on premarital and marital agreements. Nevertheless, the
carefully articulated policies within the ALI’s work will continue to inform any
law reform project going forward.
CONCLUSION
American law does not coalesce around a single conception of marriage.
This Essay has shown that different understandings of marriage yield different
legal standards for marital contracts. While some states appear to endorse a
construct of marriage as an immutable status, others are willing to place marital
contracts almost on a par with commercial contracts. In between these two
extremes, a consensus exists that the law should impose an obligation of honesty,
good faith, and fair dealing on spouses when entering into marital contracts.
Imposing a standard of substantive fairness at the time of enforcing an agreement,
and the contours of such a standard, is a more contentious question that pits
freedom of contract and reliance interests against the protection of vulnerable
family members.
The decline of the marriage rate forms a backdrop to any law reform
efforts directed at elements of family law. Americans are marrying less and at an
older age, but marriage still remains a goal for most young people in the United
States.
215
If promoting marriage is a public policy objective, permitting flexibility
in the meaning of marriage would seem more likely to attract people to the
institution than adhering to a fixed and immutable status. In Europe, where the law
typically affords couples less contractual freedom to alter the default rules of
marriage, a steeper decline in marriage rates than in the United States has
occurred. While the fall in marriage popularity in Europe undoubtedly is due to a
coalescence of factors, the phenomenon suggests that couples are seeking a less
fixed and more malleable understanding of marriage.
Law reform efforts on marital agreements, such as those undertaken by
the ULC, must take into account the spectrum of views about marriage examined
in this Essay. At the same time, law reform by definition must be forward looking.
213. See, e.g., In re Marriage of Bonds, 5 P.3d 815, 823–24 (Cal. 2000) (noting
that commissioners did not supply definition of “voluntary” and did not discuss it fully),
superseded by statute, Act of Sept. 10, 2001, ch. 286, § 2, 2001 Cal. Stat. 2316, 2317–18
(codified as amended at C
AL. FAM. CODE §§ 1612, 1615 (2011)).
214. See supra note 144 and accompanying text.
215. See P
EW RESEARCH CTR., supra note 61, at 23.
42 ARIZONA LAW REVIEW [VOL. 54:11
When spouses contract between themselves to alter the law that would otherwise
apply, the enforceability of their contract should be governed not by shibboleths
and abstract ideals, but by a clear legal framework reflecting realistic policy
choices.
