POSTNUPTIAL AGREEMENTS - UW Law School

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WILLIAMS - FINAL 11/29/2007 4:07 PM 870 WISCONSIN LAW REVIEW information about their partner’s reservation price. Although most states require fiancés to disclose their assets before entering a prenuptial agreement, this information does not indicate how much they want to get married or how devastated they would be if the marriage fell through. Fiancés no doubt have some rough idea of their partner’s feelings on these questions, but spouses are likely to have better information. Therefore, because the partners cannot discern credible threats from noncredible threats, there is more room for deception and obfuscation in the prenuptial context. Due to loss aversion, the poorer fiancé will also be less likely than the poorer spouse to drive a hard bargain. After someone obtains a higher standard of living and gets used to the emotional and social advantages of marriage, he or she is likely to value it more than before. 214 This suggests that the costs to a spouse of losing his or her marital wealth will be greater than the costs to a fiancé of forgoing the same amount of wealth. Therefore, spouses will drive harder bargains than fiancés, and the results of postnuptial agreements will tend to be more egalitarian than the results of prenuptial agreements. The preceding discussion undermines arguments in favor of regulating postnuptial agreements more heavily than prenuptial agreements. Postnuptial agreements cannot benefit either spouse unless couples know that the terms of their agreements will be enforced by the courts. If agreements are often altered by courts under vague standards of equity, then couples cannot reliably redistribute assets and obligations within their marriage and will simply divorce when one spouse obtains a valuable outside option. This suggests that courts should not impose signing-time or enforcement-time fairness review. The most common rules regulating prenuptial agreements—those from the UPAA—likewise eschew fairness review. The UPAA even goes so far as to limit the ability of courts to conduct a standard unconscionability review. 215 Instead, it regulates prenuptial agreements by imposing procedural requirements that help ensure informed and rational bargaining. 216 If courts and legislatures choose to regulate postnuptial agreements, the UPAA is likely to provide a good first approximation of what that regulation should look like. 214. Sunstein, supra note 165, at 1179–81 (noting that people’s displeasure from a loss is greater than their pleasure from an equivalent gain). 215. UNIF. PREMARITAL AGREEMENT ACT § 6 (amended 2001), 9C U.L.A. 48 (1983). 216. Id.
WILLIAMS - FINAL 11/29/2007 4:07 PM 2007:827 Postnuptial Agreements 871 V. A NORMATIVE EVALUATION OF <strong>POSTNUPTIAL</strong> CONTRACTING The primary normative defense of postnuptial agreements is straightforward: the availability of postnuptial agreements will make each spouse better off. Of course, this would not end the normative inquiry if there were any identifiable externalities. As noted above, courts unanimously refuse to enforce terms within pre- or postnuptial agreements that alter child support obligations, determine custody, or otherwise have a substantial effect on children. 217 Therefore, courts already have the equitable tools required to address these problems. Communitarian feminists, however, have suggested that another externality may exist. They argue that enforcing postnuptial agreements sends an expressive signal that is corrosive to our shared notion of what constitutes a good relationship and may ultimately harm spouses. Part V.B. addresses this concern and concludes that it does not present a serious challenge to the normative viability of postnuptial agreements. A. The Liberal-Feminist Defense: Both Spouses Benefit The recent evolution of marriage law reflects a convergence upon liberal-feminist theories of marriage. 218 It is feminist in that the law no longer values the happiness and autonomy interests of the husband more highly than those of the wife. Instead the law strives to give equal weight to the interests of each spouse. It is liberal in that family law has become increasingly responsive to claims based on autonomy rather than obligation. In the past twenty-five years or so, the law of divorce awards has shifted to an emphasis on the external stance towards marriage. Divorce now ideally represents a “clean break” between spouses, which leaves no ongoing financial relationship between them. This rests on a vision of marriage as primarily an arrangement to promote individual happiness. 219 217. Vivian Hamilton, Principles of U.S. Family <strong>Law</strong>, 75 FORDHAM L. REV. 31, 42 n.49 (2006) (noting that “aspects of [premarital] agreements that purport to resolve nonfinancial issues such as custody of children or conduct during the marriage are typically not binding”). 218. Scott, supra note 82, at 701 (“The history of the modern law of marriage and divorce seems to be . . . a rather straightforward progression from a communitarian model of family relations to a model based on principles of liberal individualism.”). 219. REGAN, supra note 132, at 168.
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POSTNUPTIAL AGREEMENTS - UW Law School

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