POSTNUPTIAL AGREEMENTS - UW Law School

WILLIAMS - FINAL 11/29/2007 4:07 PM
844 WISCONSIN LAW REVIEW
a demand for a pre-nuptial agreement.” 86 “[T]he dynamics and
pressures involved in a mid-marriage context are qualitatively
different” and “are pregnant with the opportunity for one party to
use the threat of dissolution to bargain themselves into positions of
advantage.” 87 California appellate courts have instituted a
presumption of duress based on similar concerns. 88
Many scholars have reiterated these concerns. Professor Amy
Wax has argued that “men on average have more power in the
[heterosexual marital] relationship. . . . [M]en are in a position to
‘get their way’ more often and to achieve a higher degree of
satisfaction of their preferences.” 89 Similarly, Professor Kathryn
Abrams has argued that courts should be wary of enforcing the
choices of husbands and wives because “we should question how
choice is produced within heterosexual unions, where power
relationships are complicated and often unequal.” 90 Marital
bargaining is therefore likely to produce “marital contracts that are
the product of inequalities in bargaining power.” 91
These concerns are nicely illustrated by Pacelli v. Pacelli. 92
The Pacellis married in 1975 when Mr. Pacelli was a forty-four-
year-old real-estate developer and Ms. Pacelli was a twenty-yearold
Italian immigrant. 93 After ten years of marriage, Mr. Pacelli
requested a postnuptial agreement to protect his investments from
the volatility of divorce proceedings. 94 He offered his wife far less
than she would have received under New Jersey’s equitable
distribution rules. 95 He refused to negotiate, presented the offer as
a take-it-or-leave-it deal, and “moved out of the marital bedroom”
86. Pacelli, 725 A.2d at 59.
87. Id. at 61–62 (internal quotations omitted) (quoting Mathie v. Mathie, 363
P.2d 779, 783 (Utah 1961)).
88. In re Marriage of Haines, 39 Cal. Rptr. 2d 673, 683 (Cal. Ct. App. 1995)
(“When an interspousal transaction advantages one spouse, the law, from
considerations of public policy, presumes such transactions to have been induced by
undue influence. Courts of equity . . . view gifts and contracts which are made or take
place between parties occupying confidential relations with a jealous eye.” (internal
quotation and citations omitted)), cited in In re Marriage of Friedman, 122 Cal. Rptr.
2d 412, 418 (Cal. Ct. App. 2002).
89. Wax, supra note 9, at 513.
90. Abrams, supra note 7, at 518.
91. Id.
92. Pacelli, 725 A.2d at 56.
93. Id. at 57.
94. Id. at 58, 60.
95. Id. at 62 (calculating that husband offered wife eighteen percent of the
marital estate).