POSTNUPTIAL AGREEMENTS - UW Law School

WILLIAMS - FINAL 11/29/2007 4:07 PM
2007:827 Postnuptial Agreements 877
acceptable. 247 To the extent that this alimony scheme illegitimately
assigns ownership rights over a spouse’s future income stream, the
results of postnuptial bargaining will reflect that illegitimacy. Yet, even
if postnuptial agreements are reflecting an underlying illegitimate
property right, regulating postnuptial agreements is an extremely
underinclusive way of addressing the problem. Courts and
commentators should instead continue debating the proper alimony
regime.
B. The Communitarian Critique and a Brief Response
The previous Section considered the benefits of postnuptial
agreements for the spouses within a particular marriage and bracketed
the question of possible externalities. But several communitarian and
feminist communitarian theorists argue that enforcing postnuptial
agreements sends an expressive signal that is corrosive to our shared
notion of what constitutes a good relationship. They have argued that
when a state supports a contractual view of marriage in general, it
sends a signal that contracts are an, or perhaps the only, appropriate
way to approach marriage. 248 Others might argue that, although
prenuptial agreements are widely available, the state should not
exacerbate the problem by allowing postnuptial agreements as well.
Formal negotiations could be limited to the premarital stage, plausibly
maintaining the marriage itself as a sphere governed by the ethic of care
rather than personal self-interest.
It is difficult, however, to maintain a firm distinction between the
pre- and postnuptial contexts when the core challenge is grounded in a
general aversion to contractual thinking. If law has a powerful,
expressive force, then any differences in the law must be explained for
247. In addition to postdivorce earnings, a husband’s value on the remarriage
market contributes to his outside option. Unlike property entitlements, the state is not
directly responsible for the biological differences between the length of men’s and
women’s reproductive lives. See Wax, supra note 9, at 548. Under some theories of
equality, however, the state may nonetheless be obligated to mitigate the costs that stem
from this difference. This is beyond the scope of this Article. It is sufficient here to
note that these arguments would require a large shift in the current and historical norms
of state obligation.
248. GLENDON, supra note 222, at 113 (suggesting that our cultural and legal
vocabulary is dominated by individual rights and that this prevents Americans from
accurately describing and dealing with social issues); Scott, supra note 82, at 717
(“[T]he law’s description of marriage and family distorts the aspirations and
experiences of many people.”). Some have argued that the use of a political and
economic theory is a self-fulfilling prophecy. See REGAN, supra note 132, at 82
(“Theory is also an attempt to understand ourselves, and such understandings enter in
subtle ways into our sense of who we are and why we act.”).