POSTNUPTIAL AGREEMENTS - UW Law School

WILLIAMS - FINAL 11/29/2007 4:07 PM
2007:827 Postnuptial Agreements 855
pay twenty-five cents, but this corrected information will only emerge
after costly delay.
These dynamics are likely to have a far greater impact on
prenuptial bargaining than on postnuptial bargaining. Before a
marriage, the couple may have limited information about how much the
other person wants to get married. This could lead to stalled
negotiations. These issues are significantly less likely to affect
postnuptial bargaining. Couples presumably get to know one another
better the longer they remain together. Therefore, married couples
should know one another much better than fiancés. They are likely to
have fairly accurate information about how much their spouses value
the marriage, how devastated their spouses would be if the marriage
ended, and how valuable they are on the remarriage market. 143 Indeed,
it is hard to imagine any context where the contracting parties will have
better information about one another.
B. Cost of Delay
In the postnuptial context, the spouse presented with the postnuptial
agreement is likely to have lower costs associated with delaying
agreement. This suggests that this spouse will have more bargaining
power than the spouse who is presenting the postnuptial agreement.
Although there are potentially many rounds of bargaining under the
alternating-offers model, each player experiences costs as a function of
time. This puts pressure on the players to reach an agreement. These
costs could come from the stress of bargaining itself, the costs of hiring
an attorney, or simply from opportunity costs. In the marital context,
each spouse might experience disutility if they remain deadlocked. The
spouse with the larger cost of delay will have a disadvantage in
bargaining because he or she will have a greater incentive to reach an
agreement.
When spouses differ in their costs of delay, the model predicts that
the spouse with the lower costs of delay will be able to obtain almost all
of the surplus. 144 In every time period, prolonging the bargaining
process hurts the spouse with the higher costs of delay more than it
hurts the spouse with the lower costs of delay. If the spouse with the
143. B. Pawlowski & R. I. M. Dunbar, Impact of Market Value on Human
Mate Choice Decisions, 266 PROC. ROYAL SOC’Y BIOLOGICAL SCI. 281, 283 (1999)
(examining supply and demand in dating by looking at newspaper personal ads and
concluding that both men and women are “well attuned to their market value,” except
for 45–49 year olds of both sexes, who, for unknown reason, tend to overestimate their
market value).
144. CAMERER, supra note 112, at 175.