Cleveland State University
EngagedScholarship@CSU
("1"(*!//"2"1&"2 2+0-*(.
Prenuptial Agreements: A New Reason to Revive
an Old Rule
Jerey G. Sherman
Chicago-Kent College of Law
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PRENUPTIAL AGREEMENTS: A NEW REASON TO REVIVE
AN OLD RULE
J
EFFREY
G. S
HERMAN
1
I. H
OW
M
ARRIAGE
H
ELPS
O
UR
S
OCIETY
................................361
II. W
HY
P
RENUPTIAL
A
GREEMENTS
A
RE
P
OPULAR
.................365
A. Apportionment of “Marital Property” Upon
Divorce in Common Law Property States ...................367
B. Apportionment of Property Upon Divorce in
Community Property States.........................................370
C. Alimony Awards in Common Law Property and
Community Property States.........................................371
D. The Incentives Behind Prenuptial Agreements............ 372
III. T
HE
E
VOLUTION IN THE
E
NFORCEABILITY OF
P
RENUPTIAL
A
GREEMENTS
..................................................375
IV. W
HY
E
NFORCING
P
RENUPTIAL
A
GREEMENTS IS
P
ER
S
E
I
NEQUITABLE
...........................................................384
V. S
PECULATIONS
A
BOUT
S
TRATEGIC
B
EHAVIOR
....................394
VI. C
ONCLUSION
........................................................................398
Redefining marriage in a way that reduces it to a financial and legal
relationship will only accelerate the deterioration of family life.
Sen. John Cornyn (R-Texas)
2
I couldn=t agree more. Marriage is a bond that should be kept as distinct as
possible from mere partnerships. Senator Cornyn made these remarks in an attempt
to counter Congressman Barney Frank=s (D-Mass.) observation that allowing same-
sex couples to marry does not harm anyone else=s marriage. Now, I share Senator
Cornyn=s desire to prevent the mercantilization of marriage, but the way to
accomplish that goal is not to bar same-sex marriages but rather to bar the
enforcement of prenuptial property-apportionment agreements—that is, to revive an
1
Professor of Law, Senior Advisor, Graduate Tax Program, Chicago-Kent College of
Law, Illinois Institute of Technology. A.B.; 1968, J.D., 1972, Harvard. In writing this article,
I have benefited enormously from the shrewd advice and sternly critical judgments of Brian
Bix, Daniel Hamilton, and Christopher Leslie, and I am grateful to them for their interest and
assistance. I must also thank my diligent and skillful student research assistants, Shani Austin,
Andrew Corbett, Anna Misfeldt, and Hart Rosenblatt. And I should like to thank the Marshall
D. Ewell Research Fund for providing support for the writing of this article.
2
See Gay Lawmaker Testifies: “Who Are We Hurting?,” C
HI
. T
RIB
., Mar. 24, 2004, at 11.
359
1Published by EngagedScholarship@CSU, 2005
360 CLEVELAND STATE LAW REVIEW [Vol. 53:359
old per se rule—since it is prenuptial agreements, not same-sex unions, that can
“reduce” marriage to a financial relationship.
3
Until the 1970s, American courts uniformly refused, on public policy grounds, to
enforce prenuptial agreements designed to apportion property in the event of
divorce.
4
They regarded the enforcement of such contracts as inimical to the stability
of marriage.
5
But this view softened over the years as courts came to regard the
3
Couples sometimes include behavioral provisions in their prenuptial contracts, with
mixed results, in an attempt to regulate conduct during the marriage rather than to apportion
property rights upon termination of the marriage. See, e.g., Favrot v. Barnes, 332 So. 2d 873,
875 (La. Ct. App. 1976), rev
=
d on other grounds, 339 So. 2d 843 (La. 1976) (refusing to treat
as marital “fault” a wife=s demand for sexual intercourse more than the once per week
stipulated in the couple=s prenuptial agreement); Koch v. Koch, 232 A.2d 157, 159-60 (N.J.
Super. Ct. App. Div. 1967) (refusing to enforce a prenuptial agreement that the husband=s
mother would reside with the couple); Ramon v. Ramon, 34 N.Y.S.2d 100, 111 (Fam. Ct.
1942) (enforcing a prenuptial agreement regarding the religious upbringing of the marital
children). See generally James Herbie Difonzo, Customized Marriage, 75 I
ND
. L.J. 875, 939,
955-56 (2000). Such behavioral provisions lie beyond the scope of this article.
4
These contracts are also known as “antenuptial agreements” or “premarital agreements.”
In view of the increasing popularity of the vernacular term “prenup,” I have elected to favor
the term from which Aprenup was derived.
5
See infra text accompanying note 84. Even when American courts were unwilling to
enforce prenuptial property-apportionment agreements upon divorce, they were willing to
enforce them at death. That is, if a contract between a prospective husband and a prospective
wife purported to limit her share of marital property in the event of divorce and her share of
the husband=s estate in the event he predeceased her, a court that was unwilling to enforce the
former provision would nonetheless enforce the latter. See, e.g., McNutt v. McNutt, 19 N.E.
115 (Ind. 1888); In re Muxlow Estate, 116 N.W.2d 43 (Mich. 1962); Cronacher v. Runge, 98
S.W.2d 603 (Mo. 1936); In re Estate of Eisner, 181 N.Y.S.2d 327 (Sur. Ct. 1959); see also
Uhrig v. Pulliam, 713 S.W.2d 649 (Tenn. 1986).
The doctrinal explanation [for this difference in treatment]
was that death-focused
premarital agreements did not give either party an incentive to divorce. One also
might speculate that an attempt to keep a family heirloom or other family property
within a family—apparently a common purpose of such agreements—is more
sympathetic than a divorced-focused agreement, in which, paradigmatically, a richer
prospective spouse asks a poorer prospective spouse to give up rights to all but a small
part of the wealth and income of the richer prospective spouse.
Brian Bix, Bargaining in the Shadow of Love: The Enforcemen
t of Premarital Agreements
and How We Think About Marriage, 40 W
M
. & M
ARY
L. R
EV
. 145, 153 (1998) (footnotes
omitted). One might quarrel with the proposition that a death-focused prenuptial agreement
does not give either spouse an incentive to divorce; one can readily imagine that
a dissatisfied wife—secure in th
e knowledge that the provisions for alimony contained
in the antenuptial agreement could not be enforced against her, but that she would be
bound by the provisions limiting or waiving her property rights in the estate of her
husband—might provoke her husband into divorcing her in order to collect a large
alimony check . . . rather than take her chances on being remembered generously in
her husband=s will.
Posner v. Posner, 233 So. 2d 381, 383 (Fla. 1970), re
v
=
d on other grounds, 257 So. 2d 530
(Fla. 1972). Of course, a wife might make the same strategic determination even in the
absence of a prenuptial agreement if she were confident that state alimony and
division-of-property laws provided more generous benefits than her husband=s probable will or
the state=s elective share statute. In any case, the enforceability of death-focused prenuptial
2https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 361
societal interest in marriage as less compelling than the individual=s interest in his
own autonomy. Today, “divorced-focused premarital agreements regarding the
division of property and spousal support are . . . enforceable in almost every state,”
6
despite warnings from a number of scholars that this development operates to the
disadvantage of women.
7
So here I stand, urging that we revive the old rule
prohibiting altogether the enforcement of prenuptial agreements, but I do so not
because these agreements encourage divorce or disfavor women, but rather because
they permit married couples, inequitably, to make simultaneous, inconsistent claims:
that of forming a privileged unit founded on mutual sacred pledges of devotion and
loyalty, and that of being parties to a custom-built partnership between two
autonomous bargainers.
8
This inequity is not an inequity between men and women;
that inequity will, it is hoped, vanish over time. Rather, the inequity of which I
speak is an inequity between the married and the unmarried.
This article is divided into five parts. The first part discusses the justification for
our society=s co
ntinued promotion of the institution of marriage. The second
discusses why prenuptial agreements have become so widespread. The third gives
an account of American courts= shift from rejecting prenuptial agreements to
routinely enforcing them. The fourth presents my argument for treating as
inequitable per se the enforcement of prenuptial agreements. And the fifth explores
how the adoption of my view of prenuptial agreements might affect the popularity of
marriage.
I. H
OW
M
ARRIAGE
H
ELPS
O
UR
S
OCIETY
It is by now a commonplace observation t
hat American law confers on married
couples numerous benefits and privileges not conferred on unmarried couples.
9
I am
prepared to defend these legal incentives to marry and stay married because the
agreements is sufficiently noncontroversial that this article will be concerned solely with the
enforceability of divorce-focused agreements.
6
Bix, supra note 5, at 158.
7
E.g., Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 Y
ALE
J.L. &
F
EMINISM
229 (1994).
8
I make no objection to the enforcement of divorce-related settlement agreements or other
postnuptial contracts affecting the distribution of property. In a postnuptial settlement, the
parties bargain in the shadow of state default rules that have in fact already become
enforceable: state default rules premised on the “mutual sacred pledges” view of marriage.
9
In 1997, the General Accounting Office reported that 1,049 federal laws condition
benefits and privileges on one=s marital status. U.S. G
EN
. A
CCOUNTING
O
FFICE
, D
EFENSE OF
M
ARRIAGE
A
CT
, G
EN
. A
CCOUNTING
O
FFICE
R
EP
. OGC-97-16, at
2 (1997). Professor Janet
Halley of Harvard Law School “acknowledges ‘the tremendous asset transfers to marriages in
our system’ that serve as ‘subsidies’ to encourage and support marriage.” Harbour Fraser
Hodder, The Future of Marriage, 107 H
ARV
. M
AG
. 38, 43 (Nov.-Dec., 2004).
3Published by EngagedScholarship@CSU, 2005
362 CLEVELAND STATE LAW REVIEW [Vol. 53:359
institution of marriage benefits society as a whole.
10
But in what way does marriage
benefit society?
11
For most Americans, child-rearing, though undeniably important, is not the
primary consideration underlying marriage. In a 24-nation comparative poll
sponsored by the National Opinion Research Center at the University of Chicago,
subjects were asked whether they agreed or disagreed with various statements. With
the statement “The main purpose of marriage these days is to have children,” 69.5%
of the U.S. subjects disagreed; that was the second-highest rate of disagreement
among the 24 nations surveyed (only New Zealand was higher).
12
And the United
States Supreme Court has held on a number of occasions that States may not
condition the right to marry on an intention to produce or an ability to provide for
children.
13
Rather, Americans see marriage as an institution primarily related to
romantic love and companionship.
14
10
See Zablocki v. Redhail, 434 U.S. 374, 403 (1978) (Stevens, J., concurring) (“When a
State allocates benefits or burdens, it may have valid reasons for treating married and
unmarried persons differently. Classification based on marital status has been an accepted
characteristic of tax legislation, Selective Service rules, and Social Security regulations.”).
11
By “marriage” I refer principally to solemnized marriage as opposed to so-called
common law marriage. The latter institution treats a man and woman as married, even though
they have not obtained a marriage license and gone through an established ceremonial
proceeding, if they (1) intended to enter into a husband/wife relationship, (2) openly lived
together as husband and wife, and (3) have met certain other conditions that vary somewhat
from state to state. Today, only 11 states and the District of Columbia recognize common law
marriage,
L
AWRENCE
W. W
AGGONER ET AL
., F
AMILY
P
ROPERTY
L
AW
84 (3d ed. 2002),
although, under well-established conflicts rules, the remaining states will recognize as valid
within their own borders common law marriages inaugurated in a state that allows them. E.g.,
Blaw-Knox Constr. Equip. Co. v. Morris, 596 A.2d 679 (Md. Ct. Spec. App. 1991);
Peffley-Warner v. Bowen, 778 P.2d 1022 (Wash. 1989). But inasmuch as the marital benefits
of which I am about to speak are more likely to be associated with solemnized marriage than
with common law marriage, I shall confine my discussion to the former. See Craig A.
Bowman & Blake M. Cornish, Note, A More Perfect Union: A Legal and Social Analysis of
Domestic Partnership Ordinances, 92 C
OLUM
. L. R
EV
. 1164, 1185 (1992) (“[Even if]
marriage conferred no legal rights or obligations, it seems likely that the state would continue
to solemnize marriages because that is what people want—a public commitment and a right to
hold themselves out as something different [from what] they were before the marriage.”).
12
T
OM
W. S
MITH
, N
AT
’
L
O
PINION
R
ESEARCH
C
TR
., U
NIV
.
OF
C
HICAGO
, T
HE
E
MERGING
21st
C
ENTURY
A
MERICAN
F
AMILY
11 (1999), available at http://www.norc.uchicago.edu/online/
emerge.pdf (on file with author).
13
E.g., Turner v. Safley, 482 U.S. 78, 95-96 (1987) (holding that prison inmates have a
constitutional right to marry even though they will never be able to cohabit with their spouses
or consummate the marriage); Zablocki v. Redhail, 434 U.S. 374, 390-91 (1978) (holding that
a state may not bar an indigent person from obtaining a marriage license merely because he
already has children from a previous liaison who are public charges).
14
S
MITH
, supra note 12, at 11. This American perspective on marriage—like so many
American perspectives—has its roots in seventeenth century English Puritanism. One modern
scholar, after remarking upon the lack of what we should regard as emotional intimacy in the
marriages depicted in Shakespeare=s plays, observed:
Shakespeare was not alone in his time in finding it difficult to portray or even imagine
marital in
timacy. It took decades of Puritan insistence on the importance of
4https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 363
The core notion is “belonging,” to use Dean Hafen=s deceptively artless term.
15
We are, as a species, social creatures, unable to flourish without a sense of
connectedness.
Man, said Aristotle, is the least self-sufficient of animals. But the human
i
ndividual is not merely an animal who happens to lack self-sufficiency;
he is an animal whose essence it is to lack self-sufficiency. We need each
other, and it is Aristotle=s task to make, as it were, a virtue of this
necessity. The life of belonging to a polis is not . . . a grudging
dependence, but a positive and essentialist embrace of interdependence.
16
Personal intimacy fosters this willingness to embrace interdependence, and it does so
not simply by alleviating the pain of loneliness or easing “the existential sadness that
comes from relating to other persons only through one=s bargains and episodic
encounters,”
17
but by providing an environment in which the skills and habits of
harmonious engagement—so necessary to our collective well-being—may be honed
and applied.
18
companionship in marriage to change the social, cultural, and psychological
landscape. By the time Milton published Paradise Lost in 1667, the landscape was
decisively different. Marriage was no longer the consolation prize for those who did
not have the high vocation of celibacy; it was not the doctrinally approved way of
avoiding the sin of fornication; it was not even principally the means of generating
offspring and conveying property. It was about the dream of long-term love.
S
TEPHEN
G
REENBLATT
, W
ILL IN THE
W
ORLD
: H
OW
S
HAKESPEARE
B
ECAME
S
HAKESPEARE
128-29 (2004). Although he does not say so, Professor Greenblatt=s references to marriage as
a consolation prize and as an approved way of avoiding fornication presumably have their
roots in one of the Epistles of St. Paul:
Yes, it is a good thing for a man not to touch a woman; but since sex is always a
danger, let each
man have his own wife and each woman her own husband. . . . There
is something I want to add for the sake of widows and those who are not married: it is
a good thing for them to stay as they are, like me [i.e., celibate], but if they cannot
control the sexual urges, they should get married, since it is better to be married than
to be tortured.
1 Corinthians 7:1-2 & 7:8-9 (Jerusalem Bible).
15
See Bruce C. Hafen, Individualism and Autonomy in Family Law: The Waning of
Belonging, 1991 BYU L. R
EV
. 1 (1991).
16
Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. M
ICH
. J.L.
R
EFORM
751, 767 (1992) (footnotes omitted).
17
Anita Bernstein, For and Against Marriage: A Revision, 102 M
ICH
. L. R
EV
. 129, 200
(2003) (eloquently summarizing the views expressed in Milton C. Regan, Jr., Postmodern
Family Law: Toward a New Model of Status, in P
ROMISES TO
K
EEP
: D
ECLINE AND
R
ENEWAL
OF
M
ARRIAGE IN
A
MERICA
157 (David Popenoe et al. eds., 1996)); see also Jane Larson, The
Sexual Injustice of the Traditional Family, 77 C
ORNELL
L. R
EV
. 997, 999 (1992) (“It is within
families that . . . we seek and give the love and companionship that makes it possible for us to
survive the loneliness and harshness of our lives.”).
18
See Katharine K. Baker, Biology for Feminists, 75 C
HI
.-K
ENT
L. R
EV
. 805, 831 (2000)
(“Spouses . . . have always provided a forum for intimacy by allowing their partners to feel
less atomized, more emotional, and more connected to others. This work—which is the work
of intimacy—and the feelings it engenders should be recognized as important, possibly even
crucial, to our collective well-being.”) (footnote omitted).
5Published by EngagedScholarship@CSU, 2005
364 CLEVELAND STATE LAW REVIEW [Vol. 53:359
The struggle for intimacy, if successful, yields not only individual benefits but
societal benefits. Like any struggle, the pursuit of intimacy requires effort, and state-
sanctioned marriage offers the individual a respite from that effort. Paradoxically,
the “bond” of matrimony liberates the individual so that he may make himself more
valuable to the polis:
The marital bond that now holds opposite-sex couples together (and by
exam
ple encourages same-sex couples to think of themselves as
conjoined) would loosen [if state-sponsored marriage were abolished];
pairing-off might grow more provisional, requiring more effort to keep
up. These struggles would take time away from other pursuits. It seems
plausible to speculate that individuals who can never obtain respite from
competing for intimacy would have less to offer (including, for example,
political engagement, the building of economic wealth, the care of
children, or expanding the frontiers of human knowledge and
accomplishment) than those not competing in this market.
19
The more reliable the bond, the greater the liberation and the greater the societal
benefit. And marriage has shown itself to be more reliable than (heterosexual)
cohabitation, even in an age when Americans believe they have a “fundamental right
to marry, and marry, and marry.”
20
Compared with heterosexual cohabitation, marriage is more stable and its
commitments are more durable.
21
Some of this greater stability results from the
powerful societal endorsement—the governmental grant of a license, the judicial or
sacramental solemnization—that marriage enjoys.
22
But much of the stability is
attributable to the barriers to marital dissolution that the law imposes: the greater
exit costs for marital partners than for “mere” cohabitants.
23
Social scientists have
19
Bernstein, supra note 17, at 206; see also Stephanie Coontz, Marriage, A History From
Obedience to Intimacy, or How Love Conquered Marriage 309 (2005).
[Marriage] remains the highest
expression of commitment in our culture and comes
packaged with exacting expectations about responsibility, fidelity, and intimacy.
Married couples may no longer have a clear set of rules about which partner should do
what in their marriage. But they do have a clear set of rules about what each partner
should not do. And society has a clear set of rules for how everyone else should and
should not relate to each partner. These commonly held expectations and codes of
conduct foster the predictability and security that make daily living easier.
Id. at 309
(second emphasis added). See also Hafen, supra note 15, at 41.
20
Mary Ann Glendon, The New Marriage and the New Property, in M
ARRIAGE AND
C
OHABITATION IN
C
ONTEMPORARY
S
OCIETIES
: A
REAS OF
L
EGAL
S
OCIAL AND
E
THICAL
C
HANGE
59, 63 (John M. Eekelaar & Sanford N. Fetz eds., 1980).
21
Steven L. Nock, A Comparison of Marriages and Cohabiting Relationships, 16 J. F
AM
.
I
SSUES
53, 56 (1995).
22
See supra note 11 and accompanying text; see also infra note 178 and accompanying
text.
23
See Nock, supra note 21, at 56.
Marriage differs so much from cohabitation legally because of the durability of the
commitments involved. Ev
en after a divorce, one may be held legally obligated to an
ex-spouse (and to children). . . . Moreover, the legal events of marriage (e.g.,
formalization of the union requiring significant effort to terminate it or legal
6https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 365
found that marital partners are more committed to each other than unmarried
heterosexual cohabitants.
24
Because of the higher exit costs, marital partners invest
more in their relationship than do unmarried cohabitants.
25
For example:
We found [heterosexual] cohabitors more likely than married people to
en
gage in infidelity, even when we controlled for permissiveness of
personal values regarding extramarital sex. This finding suggests that
cohabitors= lower investments in their unions [i.e., because exit costs are
higher when you=re married, cohabitors risk less by having an affair than
married persons do], not their less conventional values, accounted for their
greater risk of infidelity.
26
This is not to say that matrimonial bonds are an unmixed blessing for the
individual,
27
but the greater stability of marital relationships generates collective
benefits.
II. W
HY
P
RENUPTIAL
A
GREEMENTS
A
RE
P
OPULAR
Prenuptial agreements are hardly a new phenomenon, but they began life not as
di
vorce-focused instruments but as death-focused instruments. And, unlike today=s
agreements, they were not designed to protect the assets of the husband.
28
Starting in
assumptions about joint property) serve as . . . barriers that hold the relationship
together.
Id.
24
J. Thomas Oldham, Unmarried Partners and the Legacy of Marvin v. Marvin: Lessons
from Jerry Hall v. Mick Jagger Regarding U.S. Regulation of Heterosexual Cohabitants, or
Can
=
t Get No Satisfaction, 76 N
OTRE
D
AME
L. R
EV
. 1409, 1426-27 (2001).
25
Cf. Sidney v. Sidney, 4 Swab. & Tris. 178, 182, 164 Eng. Rep. 1485, 1486 (1865)
(“Those for whom shame has no dread, honourable vows no tie, and violence to the weak no
sense of degradation, may still be held in check by an appeal to their love of money.”).
26
Judith Treas & Deidre Giesen, Sexual Infidelity Among Married and Cohabiting
Americans, 62 J. M
ARRIAGE
& F
AM
. 48, 59 (2000).
27
Married women do more housework than unmarried women. M.V. L
EE
B
ADGETT
,
M
ONEY
, M
YTHS
,
AND
C
HANGE
:
T
HE
E
CONOMIC
L
IVES OF
L
ESBIANS AND
G
AY
M
EN
147 (2001)
(citing Scott J. South and Glenna Spitze, Housework in Marital and Nonmarital Households,
59 A
M
. S
OCIOLOGICAL
R
EV
. 327-48 (1994) (“[O]n average, women . . . do more housework
than men, but the gender gap is higher in married couples than in unmarried cohabiting
(opposite-sex) couples or any other living situation. When women live with men, either
cohabiting or in marriage, they increase their time spent doing >female-typed= tasks Cmeal
preparation and clean up, housecleaning, laundry, and shoppingCwith married women
increasing their hours more than cohabiting women.”).
28
Today, prenuptial agreements generally are designed to protect the husband=s assets
rather than the wife=s. For example, a survey of the 39 reported divorce cases of 1992 that
involved a challenge to a prenuptial agreement revealed that in 33 of those cases it was the
wife who brought the challenge. Barbara A. Atwood, Ten Years Later: Lingering Concerns
About the Uniform Premarital Agreement Act, 19 J. L
EGIS
. 127, 154 n.29 (1993). That is, it
was the wife rather than the husband who found the agreement to be less generous than the
state=s equitable distribution regime. Another writer, some twenty years earlier, stated that
cases in which the spouse challenging a prenuptial agreement is the husband rather than the
wife “are practically nonexistent.” Charles W. Gamble, The Antenuptial Contract, 26 U.
7Published by EngagedScholarship@CSU, 2005
366 CLEVELAND STATE LAW REVIEW [Vol. 53:359
the sixteenth century, a time when husband and wife were considered one person
(the husband), “[d]aughters of noble and wealthy European families, and later
daughters of well-to-do American families, entered into premarital agreements to
insure that if they died without children, their blood relatives rather than their
husbands would inherit their wealth.”
29
Today, however, the focus generally is on
divorce, and the contracts generally are instituted not by a prospective spouse=s
family but by the prospective spouse himself.
Prospective spouses enter into prenuptial a
greements because they wish, in the
event of divorce, to divide their property in a manner different from that prescribed
by the state=s standard property-apportionment rules. I say “they,” but generally it is
“he,”
30
for the primary purpose of most prenuptial agreements is to protect the wealth
and earnings of the economically superior prospective spouse from being distributed
to the economically weaker prospective spouse in the event of divorce, and the
economically superior spouse is usually the male.
31
To understand the nature of the
protection afforded by prenuptial agreements, however, one must understand the
property-apportionment rules that apply in their absence.
Putting aside the question of child support,
32
a divorcing spouse potentially has
two economic entitlements: an outright share of the marital assets, and periodic
M
IAMI
L. R
EV
. 692, 724 (1972). Still, examples of challenges by the husband can be found.
See In re Marriage of Higgason, 516 P.2d 289, 290 (Cal. 1973) (“The parties hereto were
married March 2, 1969. At that time, the wife was 73 years old, and the husband was 48. The
wife is a woman with substantial assets, whereas the husband at the time of the marriage was a
waiter, earning $2 an hour plus tips, and had little or no means.”); see also Gould v. Rafaeli,
822 S.W.2d 494 (Mo. Ct. App. 1991) (involving a marriage between a wealthy widow and an
impecunious cabdriver).
29
Lynn Wintriss, Waiver of REA Rights in Premarital Agreements, P
ROB
. & P
ROP
., May-
June 1993, at 16. One cannot help wondering what the bride=s wealthy family would have
done if the happy spouses had mutually rescinded the contract after the wedding.
30
But see sources cited supra note 28 for examples of prenuptial agreements demanded by
women.
31
Brod, supra note 7, at 273.
As a class, women earn less than men. . . . Even the most highly paid women . . .
suffer from the gender gap in
earnings. . . . For example, in medicine and dentistry,
women [in 1989] were earning >just over half as much as men.= The average yearly
pay for female lawyers was $61,773 while the average yearly pay for male lawyers
was $92,148. Thus, even a highly compensated woman who marries a similarly
situated man is likely to be disadvantaged by a premarital agreement that shelters each
spouse=s income from the state-mandated income sharing.
Id. at 241-42
(footnotes omitted); see also S
MITH
, supra note 12 (reporting that data from 1994
revealed that in only 22.5% of “dual-earner families” did the wife have a higher income than
the husband).
32
Even today, when American courts are willing to enforce the property-apportionment
provisions of prenuptial agreements, they generally refuse to enforce prenuptial bargains
relating to child support, child custody, or child visitation. See, e.g., Edwardson v.
Edwardson, 798 S.W.2d 941, 946 (Ky. 1990); Huck v. Huck, 734 P.2d 417, 419 (Utah 1986).
The Uniform Premarital Agreement Act, which strongly favors enforcement of prenuptial
agreements generally, prohibits such agreements from adversely affecting “the right of a child
to support.” U
NIF
. P
REMARITAL
A
GREEMENT
A
CT
, ' 3(b), 9C U.L.A. 35, 43 (2001).
8https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 367
maintenance payments (often called alimony) from the other spouse.
33
Except in
community property states,
34
the first entitlement is of much more recent vintage
than the second.
A. Apportionment of “Marital Property” Upon Divorce in Common Law Property
St
ates
Originally, at common law, “marital property” per se
did not exist; divorce courts
awarded property solely on the basis of predivorce title.
35
Even as late as 1978, a
traditional homemaker “could leave a 40-year marriage with essentially no property,
even though her husband had created a valuable business during the marriage,
relying in part on her assistance.”
36
Indeed, some courts responded with outrage to
the suggestion that a wife=s nonpecuniary contributions to a husband=s business or
professional practice should generate property-entitlements on divorce.
37
“He who
earns it owns it,”
38
was the prevailing view.
33
Although most states have one statutory provision authorizing judicial property-
apportionment and another authorizing the award of alimony, in practice the distinction
between property claims and alimony claims has begun to blur, Suzanne Reynolds, The
Relationship of Property Division and Alimony: The Division of Property to Address Need, 56
F
ORDHAM
L. R
EV
. 827, 832-34 (1988), and courts now often base property-apportionment
decisions in part on need-related factors (age, health, sources of income) that traditionally and
doctrinally were associated only with alimony. Id. at 844-45; see, e.g., Weigel v. Weigel, 604
N.W.2d 462 (N.D. 2000). Also responsible for this blurring of conceptual boundaries is the
growing prevalence of private settlement agreements concluded by divorcing parties at the
time of the divorce. See Marygold Shire Melli, Howard S. Erlanger, & Elizabeth Chambliss,
The Process of Negotiation: An Exploratory Investigation in the Context of No-Fault Divorce,
40 R
UTGERS
L. R
EV
. 1133, 1143 (1988); Austin Sarat & L.F. Felstiner, Law and Strategy in
the Divorce Lawyer
=
s Office, 20 L. & S
OC
=
Y
R
EV
. 93, 109 (1986). Private agreements often
seem to treat “alimony” payments and “property” payments interchangeably or reflect the
drafter=s awareness that tax benefits may turn on whether a payment is characterized as
alimony or property. In the interests of clarity, however, I shall adhere in this article to the
traditional approach and accord separate treatment to property awards and alimony awards.
34
Nine states apply community property principles to the regulation of marital property:
Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and
Wisconsin. Wisconsin is not a community property state by tradition, like the other eight; but
when it adopted the U
NIFORM
M
ARITAL
P
ROPERTY
A
CT
, 9A U.L.A. 103 (1998), the first (and
so far the only) state to do so, it thereby joined the community property ranks, inasmuch as the
property-apportionment regime under the UMPA is essentially a community property regime.
See William Reppy, The Uniform Marital Property Act: Some Suggested Revisions for a
Basically Sound Act, 21 H
OUS
. L. R
EV
. 679, 683 (1984).
35
L
AWRENCE
J. G
OLDEN
, E
QUITABLE
D
ISTRIBUTION OF
P
ROPERTY
1-2 (1983).
36
A
M
. L. I
NST
., P
RINCIPLES OF THE
L
AW OF
F
AMILY
D
ISSOLUTION
: A
NALYSIS AND
R
ECOMMENDATIONS
[hereinafter ALI P
RINCIPLES
] ' 4.02, reporter’s notes cmt. a (2000) (citing
Saff v. Saff, 402 N.Y.S.2d 690, 693 (S. Ct. App. Div. 1978), appeal dismissed, 389 N.E.2d
142 (N.Y. 1979).
37
See J
OAN
W
ILLIAMS
, U
NBENDING
G
ENDER
: W
HY
F
AMILY AND
W
ORK
C
ONFLICT AND
W
HAT TO
D
O
A
BOUT IT
117 (2000) (citing DeWitt v. DeWitt, 296 N.W.2d 761, 767 (Wis. Ct.
App. 1980). In DeWitt, the court reasoned that awarding entitlements to a wife on such a basis
“treats the parties as though they were strictly business partners, one of whom has made a
calculated investment in the commodity of the other=s professional training, expecting a dollar
9Published by EngagedScholarship@CSU, 2005
368 CLEVELAND STATE LAW REVIEW [Vol. 53:359
Still, there were stirrings on the other side of the issue. In 1963, for example, an
official report to the President=s Commission on the Status of Women made the
following recommendation:
Marriage as a partnership in which each spouse makes a different but
equally important contribution is increasingly recognized as a reality . . . .
During marriage, each spouse should have a legally defined and
substantial right in the earnings of the other [spouse], in the real and
personal property acquired through those earnings, and in their
management. Such a right should be legally recognized as surviving the
marriage in the event of its termination by divorce, annulment, or death.
39
While common law property states have remained unwilling to implement such
shared-ownership principles during a marriage
=
s existence, they became willing over
the years, as evidence accumulated as to the injustice of the old he-who-earns-it-
owns-it rule,
40
to apply these principles on divorce. By the mid-1980s, all common
law property states had adopted by statute some sort of “equitable distribution”
regime, whereby divorce courts were authorized to assign property to one spouse or
the other without regard to predivorce legal ownership or the source of the earnings
used to acquire it.
41
The equitable distribution statutes adopted in common law property states
generally borrow from community property law the distinction between property that
“belongs” in some sense to the couple qua couple (marital property), and property
that belongs to only one of the spouses individually (separate property).
42
Of course,
the details of the categorization standards vary considerably from state to state. If a
business that one spouse owned before marriage (and is therefore separate property)
appreciates during the marriage, some states treat the entire appreciation as marital
for dollar return.” Id. The court further noted that most “marital planning” is not “so coldly
undertaken.” Id. See also Hoak v. Hoak, 370 S.E.2d 473, 478 (W. Va. 1988) (AMarriage is
not a business arrangement, and this Court would be loath to promote any more tallying of
respective debits and credits than already occurs in the average household.”).
38
Williams, supra note 37, at 121.
39
P
RESIDENT
=
S
C
OMM
=
N ON THE
S
TATUS OF
W
OMEN
, A
MERICAN
W
OMEN
: R
EPORT OF THE
P
RESIDENT
=
S
C
OMM
=
N ON THE
S
TATUS OF
W
OMEN
47 (1963).
40
One of the most glaringly unjust applications of the old understanding was Fischer v.
Wirth, 326 N.Y.S.2d 308 (App. Div. 1971), a case in which the wife had “used her earnings
for family expenses while the husband [had] used his earnings to accumulate real and personal
property in his name only. The court found that the wife had no equitable claim on this
property.” Id. at 310-11; see also Reynolds, supra note 33, at 836 n.44.
41
ALI P
RINCIPLES
, supra note 36, ' 4.02, reporter’s notes cmt. a; G
RACE
G. B
LUMBERG
,
C
OMMUNITY
P
ROPERTY IN
C
ALIFORNIA
4 (2d ed. 1993). For example, in Weigel v. Weigel, 604
N.W.2d 462 (N.D. 2000), the court regarded the house where the couple had resided as marital
property subject to equitable—indeed, 50/50—distribution, even though the husband had
provided the entire down payment from his own separate property. Accord Mann v. Mann,
979 P.2d 497 (Wyo. 1999).
42
Community property states use the term community property” where common law
property states would use “marital property.” Both systems use the term “separate property”
identically.
10https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 369
property,
43
while others treat as marital property only that portion of the appreciation
attributable to the use of other marital property or to the personal efforts of either
spouse (as distinguished, say, from appreciation attributable to inflation or other
market conditions beyond the influence of either spouse).
44
Some states hold that a
spouse=s professional degree is marital property,
45
while others (a greater number)
hold that it is not.
46
But once the categorization is made, states largely agree as to the
consequences: Marital property is subject to equitable distribution; separate property
is not.
47
Of course, the mere identification and valuation of those assets that are
considered “marital” does not entirely dispose of the property-division problem.
Equitable distribution must be “equitable,” and again, state standards vary widely.
Trial courts must consider many factors—generally statutory factors—in deciding
upon a plan of distribution, but most of these factors relate in some way or another to
two considerations: the need of each party and the contribution of each party.
48
A
43
23 P
A
. C
ONS
. S
TAT
. A
NN
. ' 3501(a) (2001); Anthony v. Anthony, 514 A.2d 91 (Pa.
Super. 1986).
44
V
A
. C
ODE
A
NN
. ' 20-107.3.A.3.a (West 2001).
45
E.g., Daniels v. Daniels, 418 N.W.2d 924, 927 (Mich. Ct. App. 1988); O=Brien v.
O=Brien, 489 N.E.2d 712, 713 (N.Y. 1985).
46
E.g., In re Marriage of McVey, 641 P.2d 300 (Colo. Ct. App. 1981); In re Marriage of
McManama, 399 N.E.2d 371 (Ind. 1980); Hubbard v. Hubbard, 603 P.2d 747 (Okla. 1979).
47
Not all common-law property states explicitly differentiate between marital property and
separate property. A few states purport to render vulnerable to equitable distribution all
property owned by either or both spouses. See, e.g., I
ND
. C
ODE
A
NN
. ' 31-15-7-4(b) (West.
1999) (“The court shall divide the property of the parties, whether: (1) owned by either
spouse before the marriage; (2) acquired by either spouse in his or her own right [during the
marriage]; or (3) acquired by their joint efforts, in a just and reasonable manner.”); V
T
. S
TAT
.
A
NN
. tit. 15, ' 751(a) (2002). But these so-called “one pot” or “all property” jurisdictions (as
opposed to the “dual property” jurisdictions discussed in the text) direct their courts, in
determining a just and reasonable division of a couple=s assets, to consider factors that are
traditionally used in dual property states to distinguish separate property from marital. See,
e.g., I
ND
. C
ODE
A
NN
. ' 31-15-7-5(1) (West 1999) (“[t]he contribution of each spouse to the
acquisition of the property.”); V
T
. S
TAT
. A
NN
. tit. 15, ' 751(b)(11) (2002) (“[t]he contribution
of each spouse in the acquisition, preservation, and depreciation or appreciation in value of the
respective [assets], including the nonmonetary contribution of a spouse as a homemaker.”).
The American Law Institute recommends a “dual property” system. ALI P
RINCIPLES
,
supra note 36, '' 4.09, 4.11.
48
ALI P
RINCIPLES
, supra note 36, ' 4.09 cmt. a. To some extent, “need” and
“contribution” represent a conflicting vision of the nature of marriage: “need” suggests a
dependency model, while “contribution” suggests a partnership model. For a discussion of the
tensions caused by this conflict, see Martha Albertson Fineman, Societal Factors Affecting the
Legal Rules for Distribution of Property, in A
T THE
B
OUNDARIES OF
L
AW
: F
EMINISM AND
L
EGAL
T
HEORY
265, 271-78 (Martha Albertson Fineman & Nancy Sweet Thomadsen eds.
1991) (“The third most commonly listed factor [in a comprehensive survey, after ‘need’ and
>contribution=] was the length of the marriage, which can be relevant only as an influence on
the application of the primary factors of contribution (which perhaps lessens in importance
with increasing duration) and need (which perhaps increases in importance with increasing
duration.”)). In many states, marital fault bears upon equitable distribution. See, e.g., Ex Parte
O=Daniel, 515 So. 2d 1250 (Ala. 1987); Davis v. Davis, 458 N.W.2d 309 (N.D. 1990). A
11Published by EngagedScholarship@CSU, 2005
370 CLEVELAND STATE LAW REVIEW [Vol. 53:359
small number of states, by statute, presume that equitableness requires a 50/50 split
between the spouses, or at least treat 50/50 as “the starting point” for any
determination,
49
but courts in those states must nonetheless weigh the same “need”
and “contribution” factors to determine whether a claimant has successfully rebutted
the presumption or justified a departure from the starting point.
B. Apportionment of Property Upon D
ivorce in Community Property States
The community property system operating
in nine American states
is based on a sharing or partnership theory of marriage, which presumes
that each spouse contri
butes equally, in a direct or indirect manner, to the
accumulation of assets during the marriage. . . . [T]he system, in general,
regards most property acquired through the efforts of [either or] both
spouses as community property. [Treated as separate property are] assets
that a spouse acquired prior to marriage [as well as assets acquired] by
individual gift or inheritance during marriage.
50
Thus, for example, any wages that either spouse receives for services performed
during marriage are regarded as community property. And when a marriage is
terminated by divorce, each spouse may keep his separate property and is also
entitled to take with him his one-half share—outright, not an undivided share—of the
accumulated community property, although most community property states have, in
fact, modified the traditional 50/50 rule by enacting equitable distribution statutes.
51
(Any departure from strict 50/50 distribution of community property necessarily
awards to one spouse a portion of the other spouse=s separate property.)
majority of states , however, reject fault as a distribution factor. See, e.g., Horst v. Horst, 623
P.2d 1265, 1270-71 (Haw. Ct. App. 1981); Kanta v. Kanta, 479 N.W.2d 505, 508 (S.D. 1991);
T
ENN
. C
ODE
A
NN
. ' 36-4-121 (2004). See generally ALI P
RINCIPLES
, supra note 36, at ch. 1,
Topic 2, reporter=s notes. But a jurisdiction that rejects fault, in the sense of adultery or
cruelty, as a factor to be weighed in making equitable distribution may nonetheless treat
financial misconduct—e.g., dissipation of marital property by means of gifts to a paramour—
as a distribution factor. See ALI P
RINCIPLES
, supra note 36, at ' 4.10.
49
E.g., A
RK
. C
ODE
A
NN
. ' 9-12-315 (2003); I
ND
. C
ODE
A
NN
. ' 31-15-7-5 (West 1999);
N.C. G
EN
. S
TAT
. A
NN
. ' 50-20(c) (West Supp. 2003). The American Law Institute likewise
recommends this approach. ALI P
RINCIPLES
, note 36 supra, at ' 4.09(1).
50
J
OHN
D
E
W
ITT
G
REGORY ET AL
., U
NDERSTANDING
F
AMILY
L
AW
72-73 (2d ed. 2001).
Unlike the common law property system, the community property system gives each spouse
marriage-based property entitlements during the marriage, not merely upon death or
dissolution. For example, neither spouse may validly convey or encumber community real
property without the written consent of the other spouse. E.g., I
DAHO
C
ODE
A
NN
. ' 32-912
(1996).
51
See, e.g., W
ASH
. R
EV
. C
ODE
A
NN
. ' 26.09.080 (West 1997). See supra text
accompanying notes 48-49.
12https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 371
C. Alimony
52
Awards in Common Law Property and Community Property States
It goes by many names—alimony, spousal support, spousal maintenance—but its
essence
is universally understood: an obligation judicially imposed on one spouse to
continue contributing to the other spouse=s support even after their marriage is over.
53
While courts in almost all American jurisdictions do indeed enforce such an
extended obligation,
54
they disagree as to its moral or doctrinal foundation.
55
Some
courts, particularly in cases involving long-term marriages, regard alimony as a tool
for allowing the less wealthy spouse to continue to enjoy after divorce the lifestyle
she had enjoyed during the marriage. In Rosenberg v. Rosenberg, for example, a
wife who had been assigned almost $6 million of property in equitable distribution
was held entitled to an alimony award of $2,000 per week in addition: “[T]he central
objective of alimony is, subject to the availability of resources, maintenance of the
more dependent spouse in an economic style close to which the spouse had become
accustomed during the marriage.”
56
Other courts treat alimony as a form of
recompense for the more dependent spouse=s nonmonetary contributions to the
52
Courts sometimes make awards of alimony pendente lite: temporary awards to meet one
spouse=s living expenses during the pendency of the divorce proceedings. See G
REGORY
,
ET
AL
., supra note 50, at 297-98. We shall not be discussing such awards on this occasion.
Rather, we shall be concerned only with awards of so-called “permanent alimony,” which may
or may not actually be permanent but which nonetheless are intended to last for an extended
time.
53
Although alimony generally consists of a series of periodic payments, many states
authorize courts to make “lump sum” alimony awards as well. See, e.g., Winokur v. Winokur,
365 S.E.2d 94 (Ga. 1988); Washburn v. Washburn, 677 P.2d 152 (Wash. 1984). Lump sum
awards may be particularly desirable where the divorce is acrimonious and the dependent
spouse is loath to rely on the other spouse=s steady compliance. See, e.g., In re Marriage of
Goodwin, 606 N.W.2d 315 (Iowa 2000).
54
Ira Mark Ellman, The Theory of Alimony, 77 C
AL
. L. R
EV
. 1, 4 (1989). The popular
media often portray alimony as a routine outcome in divorce, available to any woman who
asks for it. Lenore J. Weitzman & Ruth B. Dixon, The Alimony Myth: Does No-Fault Divorce
Make a Difference?, 14 F
AM
. L.Q. 141, 142-43 (1980). In fact, however, alimony awards,
though hardly rare, are more the exception than the rule; somewhere between 15 and 25% of
divorced women get them. See ALI P
RINCIPLES
, supra note 36, ' 5.04, reporter=s notes, cmt.
a, and the sources cited therein. Some studies have suggested even lower figures. See
Reynolds, supra note 33 at 843 n.79; see also Jeffrey Evans Stake, Mandatory Planning for
Divorce, 45 V
AND
. L. R
EV
. 397, 401 (1992).
55
For example, the Supreme Court of New Hampshire held it proper for a trial court to
award alimony as a substitute for the equitable distribution of property. In re Jones, 768 A.2d
1042 (N.H. 2001). The plaintiff was entitled, under the state=s principles of equitable
distribution, to one-half of the defendant=s business, but the trial court awarded the entire
business to defendant in order to avoid future conflicts between the parties. And then to
compensate the plaintiff for this unequal division of marital property, it awarded her additional
alimony; indeed, more alimony than she had asked for. Id. at 1045-46. In Illinois, on the
other hand, “an award of maintenance in lieu of property is improper” (though an award of
property in lieu maintenance is proper). In re Marriage of Brackett, 722 N.E.2d 287, 295 (Ill.
App. Ct. 1999).
56
595 N.E.2d 792, 793 (Mass. App. Ct. 1992); accord Heim v. Heim, 763 P.2d 678, 683
(Nev. 1988).
13Published by EngagedScholarship@CSU, 2005
372 CLEVELAND STATE LAW REVIEW [Vol. 53:359
family.
57
And still others employ alimony as a transitional, rehabilitative tool
designed to maintain the more dependent spouse until he or she can become
self-supporting.
58
Variation among courts also exists as to the significance of marital
fault in the determination of alimony awards.
59
The American Law Institute, which rejects fault as a factor in alimony
determinations,
60
regards as the doctrinal foundation for alimony awards the
equitable allocation, between the spouses, of the “financial losses that arise at the
dissolution of [the] marriage.”
61
Among the financial losses that the Institute
enumerates, however, are losses that would sound quite familiar to divorce courts
already: e.g., “the loss [in a marriage of significant duration] in living standard
experienced at dissolution by the spouse who has less wealth or earning capacity”
62
and “[t]he loss either spouse incurs when the marriage is dissolved before that spouse
realizes a fair return from his or her investment in the other spouse=s earning
capacity.”
63
D. The Incentives Behind Prenuptial Agreements
Prenuptial agreements are prevalent and fa
shionable and likely to become even
more so. While statistics in this particular context are necessarily conjectural,
64
one
author writing in the mid-1990s reported that approximately 5% of married couples
(some 50,000 couples) each year execute prenuptial agreements, up from only 1% in
the mid-1970s.
65
Of course, one obvious explanation for this five-fold increase is
that prenuptial agreements were more regularly enforced in the 1990s than in the
1970s. But this change in the enforceability rate can serve as only a partial
explanation; parties with greater bargaining power frequently insert provisions in a
contract that they know are unenforceable in the hope that the weaker party, ignorant
of the law and more easily intimidated, will nonetheless presume she is bound by
them. We must look elsewhere for explanations.
The American divorce rate is high,
66
and so is popular awareness of that high
rate. The news media constantly remind us of the dispiriting fact that 50% of all
57
See, e.g., McNamara v. McNamara, 443 N.W.2d 511, 516 (Mich. Ct. App. 1989); Klein
v. Klein, 555 A.2d 382, 387 (Vt. 1988).
58
See Hopfer v. Hopfer, 757 A.2d 673 (Conn. App. Ct. 2000); Pfohl v. Pfohl, 345 So. 2d
371 (Fla. Dist. Ct. App. 1977). See generally G
REGORY ET AL
., supra note 50, at 299-301.
59
See ALI P
RINCIPLES
, supra note 36, at ch. 1, topic 2, reporter=s notes.
60
Id. ' 5.02(2).
61
Id. ' 5.02(1).
62
Id. ' 5.03(2)(a).
63
Id. ' 5.03(3)(a).
64
See Bix, supra note 5, at 160. “[E]mpirical work on attitudes and practices [relating to
prenuptial agreements] is fairly sparse.” Id.
65
See Gary Belsky, Living by the Rules, M
ONEY
, May 1996, at 102.
66
Indeed, they are the highest in the industrialized world. Hodder, supra note 9, at 42.
14https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 373
American marriages end in divorce.
67
Indeed, based on current data, “25-year-olds
marrying for the first time . . . face a 52.5 percent chance overall that their marriage
will end in divorce.”
68
In 1972, only 17% of American adults who had ever been
married had once (or more often) gone though a divorce; by 1998, that figure had
risen to 33%.
69
Obviously, high divorce rates and widespread awareness of divorce
generate greater interest, especially among persons of wealth, in minimizing
divorce=s adverse financial consequences. Even if the enforceability of prenuptial
agreements were less certain than it is today, the high incidence of divorce would
still convince matrimonial attorneys of the agreements= desirability: “If I were to tell
you that there=s a disease out there that affects 50% of the body politic and that
there=s a vaccine that is only 60% effective, of course you would still take the
vaccine.”
70
High divorce rates mean high second-marriage rates, and the divorce rate for
second marriages is even higher than for first marriages: 60% instead of 50.
71
It
should come as no surprise, then, that prenuptial agreements are more common for
second marriages than for first marriages.
72
And they are more common not only
because of the higher divorce rate but also because second marriages occur at a later
chronological age than first marriages: that is, at an age when one or both spouses
are likely to have accumulated more premarital wealth in need of protection.
73
Indeed, inasmuch as Americans postpone even their first marriages to a later (and
67
“[T]he cold fact is that approximately one in every two marriages in the United States
will end in divorce.” Bix, supra note 5, at 194 (citing Lynn A. Baker, Promulgating the
Marriage Contract, 23 M
ICH
. J.L. R
EFORM
217, 226 & n.34, 245 & n. 101 (1990)); see also
Stake, supra note 54, at 398 n.4 (“Based on the marriages within the last 15 years, the odds of
divorce are about one out of two.”). For some recent rethinking of these data, see Dan Hurley,
Divorce Rate: It
=
s Not as High as You Think, N.Y. T
IMES
, Apr. 19, 2005, at D7.
68
Hodder, supra note 9, at 42. “About 50 percent of first marriages for men under age
forty-five may end in divorce, and between 44 and 52 percent [of first marriages for women
under age forty-five] may end in divorce . . . .”
U.S. C
ENSUS
B
UREAU
, U.S. D
EP
=
T OF
C
OMMERCE
, N
UMBER
, T
IMING
,
AND
D
URATION OF
M
ARRIAGES AND
D
IVORCES
: 1996, at 18,
available at http://www.sipp.census.gov/sipp/p70s/p70-80.pdf.
69
S
MITH
, supra note 12, at 22.
70
William G. Flanagan & David Stix, Share and Share Unalike, F
ORBES
, June 10, 1991, at
116, 118 (quoting matrimonial lawyer Raoul Felder).
71
Ilyce R. Glink, Nuptial Saga: “48 Hours of Marriage, For Better For Worse,”
=
C
HI
.
T
RIB
., May 19, 1991, ' 6 (Womanews), at 2.
72
See Allison A. Marston, Note, Planning for Love: The Politics of Prenuptial
Agreements, 49 S
TAN
. L. R
EV
. 887, 891 (1997) (citing Allison A. Page, Note, Premarital
Consent to Waiver of Spousal Pension Benefits: A Proposal to Equalize Prenuptial “I Do”
and Postnuptial “I Do,” 47 W
ASH
. U.J. U
RB
. & C
ONTEMP
. L. 157, 162 (1995) (“[A]n
estimated 20 percent of remarriages feature a prenuptial agreement.”)).
73
Researchers have found that if one or both spouses have been married before, their
marriage is more likely to be “age-discrepant” than if the marriage were the first for each.
Brod, supra note 7, at 244. The older and more economically powerful member of an age-
discrepant couple is likely to be particularly anxious to insulate property from marital claims.
15Published by EngagedScholarship@CSU, 2005
374 CLEVELAND STATE LAW REVIEW [Vol. 53:359
presumably wealthier) age than before, prenuptial agreements are becoming more
popular for first-timers as well.
74
Shifts in judicial preferences also account for the increasing popularity of
prenuptial agreements. The 1960s marked the beginning of a judicial trend away
from grants of alimony in favor of grants of property.
The ethos of increased independence fo
r persons wanting to be free of
their spouse, the elimination of fault as a legally relevant consideration in
divorce, the excision of permanence from the concept of marriage, the
granting of freedom to remarry, and the replacement of assumed female
dependency with assumptions of equality and autonomy may have
discouraged already reluctant judges from granting alimony.
75
And property awards have one important characteristic that alimony awards do not, a
characteristic that reformers considered a blessing but that economically dominant
spouses consider a bane: immutability. Alimony awards, even if they are classified
as “permanent alimony,” are always subject to modification in the event of post-
adjudication changes in circumstances,
76
whereas outright awards of property are not
subject to such modification.
77
Consequently, the shift from alimony to property
awards creates an added incentive for the wealthier spouse to insist on a prenuptial
agreement.
The widespread publicity accorded large marital awards in high-profile divorces
also
helps to explain the increasing appeal of prenuptial agreements.
78
When Jack
Welch, retired CEO of General Electric, divorced his wife Jane after his much-
publicized affair with the editor of Harvard Business Review, his net worth was
about $900 million, and Jane, there being no enforceable prenuptial agreement in
place, received $500 million of it in the divorce settlement.
79
NASCAR driver Jeff
Gordon divorced his wife after seven years of marriage, and she received as a
consequence some $17 million of his $50 million net worth.
80
74
In 2000, the median age of men at the time of their first marriage was 26.8, up from 24.7
in 1980 and 22.8 in 1960. For women, the 2000 figure was 25.1, up from 22.0 in 1980 and
20.3 in 1960. W
ORLD
A
LMANAC
E
DUC
. G
ROUP
, W
ORLD
A
LMANAC AND
B
OOK OF
F
ACTS
2003,
at 77 (2003); see Symposium, Developments in the Law
C
The Law of Marriage and Family,
116 H
ARV
. L. R
EV
. 1996, 2075 (2003) [hereinafter Developments].
75
Stake, supra note 54, at 401.
76
G
REGORY ET AL
., supra note 50, at 304-12.
77
But see Reynolds, supra note 33, at 834 n.34 (citing two New York cases in which
courts suggested that their equitable distribution awards might be subject to future
modification).
78
See Developments, supra note 74, at 2075 n.7.
79
Braden Keil, A Beacon for Welch, N.Y. P
OST
, July 3, 2004, at NaN; see also Margaret
Littman, Is a Prenup Expiration Date an Ex-Wife
=
s Best Revenge?, C
HI
. T
RIB
., March 27,
2002, at C1 (noting that the couple originally had signed a prenuptial agreement, but by the
agreement=s own terms it had expired ten years after they were married, and that tenth
anniversary occurred thirteen years before the divorce).
80
Ed Hinton, Gordon
=
s Engine Purring, With Personal Problems Behind Him, NASCAR
=
S
Wonder Boy Re-Emerges as a Dominant Driver, C
HI
. T
RIB
., July 11, 2004, at C13; Don
16https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 375
Also well-publicized at this time were the enormous savings that premarital
agreements generated for wealthy spouses. Professional baseball star Barry Bonds
was able, because of a prenuptial agreement, to walk away from a six-year marriage
(during which his annual income had increased some 75-fold) obliged to pay merely
$20,000 per month in child support and $10,000 per month in alimony for about four
and a half years, instead of having to allot half of his $40 million fortune to his ex-
wife.
81
And a prenuptial agreement allowed Boston construction magnate M. Joseph
DeMatteo to keep 99% of his $112 million net worth upon divorce.
82
III. T
HE
E
VOLUTION IN THE
E
NFORCEABILITY OF
P
RENUPTIAL
A
GREEMENTS
In less than 30 years, American courts shifted from routinely rejecting divorce-
fo
cused prenuptial agreements to routinely enforcing them.
83
Before the 1970s,
American courts refused enforcement, on the ground that enforcement would tend to
undermine marital stability.
84
This belief that prenuptial agreements promote divorce
may strike us today as quaintly Victorian, but to me it is naive to believe otherwise.
Of course they promote divorce. If a married man knows that a divorce will cost him
half his net worth, he will be less inclined to walk away from the marriage than if he
knows that a premarital contract will keep those costs to a minimum.
85
And even
apart from these financial considerations, prenuptial agreements may be said to
promote divorce by making the unthinkable thinkable:
Coble, Lovers
=
Lane, It
=
s Not. Still, Many Drivers Race into Romance, F
LA
. T
IMES
-U
NION
,
Feb. 14, 2004, at C1.
81
In re Marriage of Bonds, 5 P.3d 815 (Cal. 2000); National League, D
ALLAS
M
ORNING
N
EWS
, Aug. 27, 2000, at 24B; Pro Basketball: No Big Deal for Four Teams, C
OLUMBUS
D
ISPATCH
(O
HIO
), Aug. 22, 2000, at 2F.
82
DeMatteo v. DeMatteo, 762 N.E.2d 797 (Mass. 2002); Bruce Mohl, On To-Do Lists:
Rehearsal for Divorce Many Advise Prenups While Love Is in the Air, B
OSTON
G
LOBE
, Sept.
21, 2003, at H6; Kathleen Burge, SJC Upholds Validity of Prenuptial Agreement, B
OSTON
G
LOBE
, Feb. 9, 2002, at A1.
83
Bernstein, supra note 17, at 138 (citing Pendleton v. Fireman, 5 P.3d 839, 845-46 (Cal.
2000)).
84
E.g., Gallemore v. Gallemore, 114 So. 371 (Fla. 1927); Scherba v. Scherba, 65 N.W.2d
758 (Mich. 1954); Fricke v. Fricke, 42 N.W.2d 500 (Wis. 1950).
85
See Fincham v. Fincham, 165 P.2d 209, 213 (Kan. 1946) (“Did the provision for
settlement, in case of separation, invite and encourage a separation as a source of pecuniary
profit to the husband? Manifestly it did. The result is that quite naturally he might be inclined
to be less considerate of his marital duties and obligations. He might even become grossly
abusive, completely intolerable and deliberately bring about a separation in the contractual
assurance that irrespective of the cause of separation he could effectively relieve himself of all
marital and contractual obligations by the payment of $2,000, a rather insignificant sum in
comparison with his financial worth of approximately $160,000.”); see also Carlin Flora, Let
=
s
Make a Deal: Does a Prenuptial Agreement Sow the Seeds of Divorce or Provide a Crash
Course in Conflict Resolution?, 37 P
SYCH
. T
ODAY
, Nov. 1, 2004, at 54 (quoting attorney Sam
Margulies: “Without a prenup, the stronger party has got to engage in more compromise in
the course of the marriage. But with a prenup, he can just say, ‘Honey, if you don’t like it B
leave.’”); John F. Schaefer, Why Michigan Should Divorce Antenuptial Agreements from
Divorce Cases, 76 M
ICH
. B
US
. L.J. 1076, 1076 (1997).
17Published by EngagedScholarship@CSU, 2005
376 CLEVELAND STATE LAW REVIEW [Vol. 53:359
[O]ne criterion of being in love is the belief that it—both the feeling and
the relationship underlying it—will go on forever. If one thinks that it
will end in a few weeks—or even a few years—then one is not in love. At
the same time, the cold fact is that approximately one in every two
marriages in the United States will end in divorce. These facts sit
uneasily together; people know divorce is not rare, but keeping a
pragmatic eye on things—here, on the likelihood of failure—seems just
the type of attitude that may make failure more likely.
86
Yet the earliest American courts to enforce divorce-focused prenuptial agreements
still felt compelled to include in their opinions the fruitless caveat that a prenuptial
agreement would not be enforced if the particular agreement could be shown to have
facilitated or promoted the particular divorce.
87
The inclusion of this caveat
demonstrates that the shift in judicial attitudes from treating prenuptial agreements as
unenforceable per se to treating them as presumptively enforceable reflected not a
change of opinion as to whether prenuptial agreements encourage divorce, but rather
a change of opinion as to the nature of divorce and marriage.
Back when prenuptial agreements were une
nforceable, marriage was regarded as
a state-regulated public status: not a bilateral alliance, but a trilateral one involving
the two spouses and the state.
88
The state=s interest lay in preserving the institution
of marriage and in maintaining the financial security of divorced persons.
89
And
because the state was a party to every marriage, it could conceivably assert interests
in conflict with those asserted by the two spouses. “Since marriage is of vital
interest to society and the state, it has frequently been said that in every divorce suit
the state is a third party whose interests take precedence over the private interests of
the spouses.”
90
In other words, a court could not grant a divorce merely because the
spouses wanted one;
91
the state had to be agreeable as well.
When the contracting parties have entered into the married state, they
have
not so much entered into a contract as into a new relation, the rights,
duties and obligations of which rest, not upon their agreement, but upon
the general law of the State, statutory or common, which defines and
prescribes those rights, duties and obligations. They are of law, not of
86
Bix, supra note 5, at 194-95 (footnotes omitted).
87
In re Marriage of Dawley, 551 P.2d 323, 333 (Cal. 1976); Posner v. Posner, 233 So. 2d
381, 385 (Fla. 1970), rev
=
d on other grounds, 257 So. 2d 530 (Fla. 1972).
88
See, e.g., Roberts v. Roberts, 185 P.2d 381, 385 (Cal. Ct. App. 1947); Anonymous v.
Anonymous, 62 N.Y.S.2d 130, 133 (Sup. Ct. 1946).
89
Brooks v. Brooks, 733 P.2d 1044, 1048 (Alaska 1987). Of special concern was the
possibility that the poorer of the two spouses, typically the wife, would, in the absence of an
adequate divorce settlement, have to be supported by the state.
90
Posner, 233 So. 2d at 383; accord Winans v. Winans, 26 N.E. 293, 295 (N.Y. 1891) (“A
divorce suit, while on its face a mere controversy between private parties of record, is as truly
viewed, a triangular proceeding sui generis, wherein the public or government occupies, in
effect, the position of third party. And while this third party is not specially represented by
counsel, it is for this purpose to be represented and protected by the judges.”).
91
Underwood v. Underwood, 12 Fla. 434, 443 (1868).
18https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 377
contract. It was of contract that the relation should be established, but,
being established, the power of the parties, as to their extent or duration, is
at an end. Their rights under it are determined by the will of the sovereign
as evidenced by law. . . . It is a relation for life; and the parties cannot
terminate it at any shorter period by virtue of any contract they may
make.
92
And similarly, a prenuptial contract between prospective spouses could not be
allowed to alter the state=s rules for property-apportionment inasmuch as the state
was not a party to the prenuptial contract. Thus, the judicial shift from rejecting
prenuptial agreements to enforcing them was profoundly linked to the public shift
from fault-based divorce to no-fault divorce.
93
Indeed the decade that marked the
so-called no-fault revolution, the 1970s, also marked the beginning of the prenuptial
agreement revolution.
Two developments spurred the no-fault revolution. The first was the mounting
d
issatisfaction with, even revulsion at, the collusive and migratory games that the
fault-based system forced upon spouses intent on divorce. In the days when divorce
statutes required marital “fault” like adultery, desertion, or physical or mental
cruelty,
94
and only the “innocent” spouse had standing to commence a divorce
action,
95
couples who shared a desire for divorce but could provide no genuine
evidence of statutory misconduct would manufacture whatever evidence was
required.
96
Indeed, the State of New York, which once allowed divorce only for
adultery,
97
was notorious for granting divorces on the basis of obviously staged
92
Adams v. Palmer, 51 Me. 480, 483 (1863).
93
See, e.g., McAlpine v. McAlpine, 679 So. 2d 85, 93 (La. 1996).
[W]ith the advent of no-fault divorce and the
changes in society that such laws
represent, public policy has changed[,] and the traditional rule that prenuptial waivers
of permanent alimony were void ab initio has given way to the more realistic view that
such agreements are valid and enforceable under certain conditions.
Id. a
t 93.
94
These statutory fault grounds were often interpreted quite strictly. For example, a New
Jersey court held that sexual conduct with a third party did not amount to adultery unless the
sexual conduct included coitus. W. v. W., 226 A.2d 860, 862 (N.J. Super. Ct. Ch. Div. 1967);
see also Laura Bradford, Note, The Counterrevolution: A Critique of Recent Proposals to
Reform No-Fault Divorce, 49 S
TAN
. L. R
EV
. 607, 610 (1997).
95
See Adriaen M. Morse, Jr., Comment, Fault: A Viable Means of Re-Injecting
Responsibility in Marital Relations, 30 U. R
ICH
. L. R
EV
. 605, 607 (1996).
96
See, e.g., Symposium, 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 C
AL
.
L. R
EV
. 2017, 2051 (2000). So familiar in popular culture were these machinations that Cole
Porter could enjoy considerable success with a 1932 musical comedy, The Gay Divorce, about
a woman embarking on a collusive divorce, a hired corespondent, and a man (played by Fred
Astaire) whom she mistakes for the hired corespondent. D
AVID
E
WEN
, N
EW
C
OMPLETE
B
OOK
OF THE
A
MERICAN
M
USICAL
T
HEATER
163-64 (1970).
97
Indeed, New York is one of the few states that still cling to a fault-only divorce system,
although the list of grounds now includes more than just adultery. See Leslie Eaton, A New
Push to Loosen New York
=
s Divorce Law, N.Y. T
IMES
, Nov. 30, 2004, at 1.
19Published by EngagedScholarship@CSU, 2005
378 CLEVELAND STATE LAW REVIEW [Vol. 53:359
“discoveries” of one spouse flagrante delicto with a third party,
98
and divorce trials
in New York at the time rarely lasted even fifteen minutes.
99
If the couple hadn’t the stomach for manufactured melodrama, they might have
relied on temporary migration to achieve their goal. The couple needed first to find
an obliging state with a short residency requirement as well as a more lenient list of
possible grounds for divorce than the state where the couple lived. A judgment of
divorce rendered by one state is entitled to Full Faith and Credit by other states only
if the forum state had jurisdiction to grant the divorce,
100
but, as a federal
constitutional matter, the mere establishment of domicile in the forum state by the
plaintiff spouse suffices to confer such jurisdiction.
101
Most states, however, impose
by statute an additional jurisdictional requirement beyond that necessary to satisfy
the federal “domicile” standard: They require the plaintiff spouse to have resided in
the state for a minimum statutory period.
102
Nevada, with its liberal grounds for
divorce and its residency requirement of only six weeks,
103
became “the hardy
perennial of the quickie-divorce states.”
104
But the migratory approach, like the
98
See Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 V
A
.
L. R
EV
. 9, 16 n.17 (1990); see also Eaton, supra note 97. (“Many judges detest the he-said,
she-said of fault trials, and some pressure the couple into agreeing to ‘constructive
abandonment,’ in which one of the parties testifies that his or her spouse refused to have sex
for a year, despite repeated requests, even if it is not true.”) (emphasis added).
99
Richard H. Wels, New York: The Poor Man
=
s Reno, 35 C
ORNELL
L.Q. 303, 318 (1950);
see also Difonzo, supra note 2, at 897 (“According to Herma Hill Kay, a leading figure in the
no-fault movement, by the 1960s ‘it was impossible to make divorce easier in California than
it already was.’ In typical ten-minute court hearings, ninety-five percent of California divorce
complainants recited accounts of their spouses’ ‘extreme cruelty’ destroying their marriage.
This statutory requirement could be met by the wife=s simple assertion that her husband was
‘cold and indifferent,’ which caused her to become ‘nervous and upset.’”) (footnotes omitted).
100
Williams v. North Carolina [II], 325 U.S. 226, 229 (1945).
101
Williams v. North Carolina [I], 317 U.S. 287, 298-99 (1942).
102
See, e.g., Sosna v. Iowa, 419 U.S. 393, 395 (1975). The federal Constitution imposes
no durational requirement on the establishment of domicile. An individual can make a state
her domicile instantly, simply by moving and residing there with the intention of remaining
there indefinitely. 15 M
OORE
=
S
F
EDERAL
P
RACTICE
¶ 102.34 to .35 (3d ed. 2005).
103
Ernest G. Lorenzen, Extraterritorial Divorce
B
Williams v. North Carolina II, 54 Y
ALE
L.J. 799, 801 (1945). Nevada=s six-week rule was so notorious that Lorenz Hart referred to it
obliquely in his song lyrics for the 1938 Rodgers and Hart musical comedy The Boys from
Syracuse, a musical version of Shakespeare=s Comedy of Errors. In the first act of the show,
which takes place in the Greek-controlled city of Syracuse, a dissatisfied wife sings to her
husband:
Listen to your lady who speaks.
This affair has run its course.
I'll reside in Athens six weeks
While I get me a divorce.
Richard Rodgers & Lorenz Hart, The Boys From Syracuse, available at http://www.
allthelyrics.com.
104
Walter Wadlington, Divorce Without Fault Without Perjury, 52 V
A
. L. R
EV
. 32, 38 n.22
(1966).
20https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 379
collusive approach, required a bit of perjury, inasmuch as the Nevada plaintiff, in
order to establish the requisite domicile, had to swear that she intended to remain in
Nevada indefinitely and had no plans to return to her previous domicile.
That parties were willing to perjure themselves to obtain divorces demonstrates
t
he width of the gap between the norms reflected in the divorce statutes and the
prevailing norms of society at large.
105
And herein lay the second development that
spurred the no-fault revolution: the marked change in social attitudes towards
marriage and divorce.
The “fault” regime, which dominated American
divorce law as soon as there was
any American divorce law, viewed marital relations as being founded on moral
duties of permanent fidelity and responsibility; consequently, those marital bonds
could be severed only if one spouse so seriously breached his moral obligations to
the other as to forfeit any right to demand fulfillment of duty in return.
106
As long as
society understood marriage in that way, divorce necessarily stigmatized both
parties: one as a dishonorable villain, the other as a pathetic victim. But as society,
perhaps with a little help from psychology,
107
came to see marital breakdown as a
complex process for which the spouses shared responsibility,
108
any divorce system
that stigmatized the participants had to be rejected. And rejected it was.
The no-fault regime emerged when
Americans= traditional regard for individual
autonomy and self-realization—and, by extension, contractual freedom—came to
color its view of marriage.
[M]arriage has become an “exchange” rel
ationship. Husband and wife are
equal, autonomous parties, each pursuing emotional fulfillment through
marriage. The relationship is sustained as long as it produces “returns”
for each [spouse].
109
And the spouses themselves, not the state, are in the best position to judge the
marriage=s continued ability to generate those “returns.” Indeed, under a no-fault
regime, either spouse acting alone can bring about a dissolution of the marriage.
110
105
See Scott, supra note 98, at 9; see also Bradford, supra note 94, at 611 (“In the 1960s,
ninety percent of divorces on fault ground were granted without contest.”).
106
See Carl E. Schneider, Moral Discourse and the Transformation of American Family
Law, 83 M
ICH
. L. R
EV
. 1803, 1809 (1985).
107
See id. at 1845-63.
108
See Scott, supra note 98, at 16 (“Under the modern view, the specific behavior that
constituted legal fault was usually only a small part of a story of shared responsibility for the
failure of the marriage.”).
109
Id. at 21.
110
See M
ARY
A
NN
G
LENDON
, A
BORTION AND
D
IVORCE IN
W
ESTERN
L
AW
: A
MERICAN
F
AILURES
, E
UROPEAN
C
HALLENGES
81 (1987) (“[T]he virtually universal understanding . . . is
that the breakdown of a marriage is irretrievable if one spouse says it is.”). A survey of
Nebraska district court judges undertaken five years after Nebraska amended its divorce law to
become a no-fault state “failed to reveal a single instance [out of some 10,000 divorce cases]
in which it could be said with certainty that a divorce which was desired by even one of the
spouses was ultimately refused.” Alan H. Frank, John J. Berman, & Stanley F. Mazur-Hart,
No Fault Divorce and the Divorce Rate: The Nebraska Experience—An Interrupted Time
Series Analysis and Commentary 58 N
EB
. L. R
EV
. 1, 66 (1978).
21Published by EngagedScholarship@CSU, 2005
380 CLEVELAND STATE LAW REVIEW [Vol. 53:359
The State of New Mexico may have begun the no-fault revolution—albeit,
quietly—in 1933 by adding the word “incompatibility” to its statutory list of grounds
for divorce.
111
But inasmuch as New Mexico retained the traditional fault-based
grounds in its amended statute, New Mexico courts sometimes clung to the notion
that divorce could not always be grounded on only one spouse=s wish. In Clark v.
Clark,
112
for example, where a husband sued for divorce on incompatibility grounds
and the wife pleaded the husband=s adultery in response, the court held that it would
“shock” the conscience to grant the husband=s petition in circumstances that would
make the divorce a reward for bad behavior.
113
The no-fault revolution as we know
it today did not truly begin until California, in 1969, not only added a no-fault
ground (irreconcilable differences) to its list of divorce grounds but also abolished
the rest of the list.
114
Some 15 states have followed California=s lead and abolished
all fault-based grounds for divorce.
115
Another 32 states, some before 1969 (like
New Mexico) and some since, have added a no-fault ground to their list but retained
the traditional fault grounds.
116
But even in these 32 states, the cultural change
precipitated by California=s repeal of all fault-based grounds became so powerful as
to eviscerate the once-prevalent fault grounds. Indeed, “fault-based petitions [were]
often resolve[d] into no-fault divorce decrees.”
117
The state=s role in structuring the economic settlement between divorcing spouses
“was premised on the state=s interest in enforcing the terms of the traditional
marriage contract.”
118
Consequently, once the no-fault revolution effectively
eliminated the state=s power to interfere with a couple= s intention to divorce, it was
but a small step to eliminate (or, at least, reduce) the state=s power to interfere with a
divorce-bound couple=s premarital settlement of their economic obligations. And,
indeed, the case usually cited as the first American case to uphold the enforceability
111
1933 N.M. Laws 54; see also James Herbie Difonzo, Alternatives to Marital Fault:
Legislative and Judicial Experiments in Cultural Change, 34 I
DAHO
L. R
EV
. 1, 29 (1977).
112
225 P.2d 147 (N.M. 1950).
113
Id. at 149. The word “reward” is mine, not the court=s.
114
See Family Law Act of 1969, ch. 1608, ' 4506, 1969 Cal. Stat. 3314, 3324 (now
codified at C
AL
. F
AM
. C
ODE
. ' 2310 (West 2004)). “Incurable insanity” is the one remaining
alternative ground. The California legislature seems to have enacted no-fault in the hope that
family court judges would not simply accept at face value the parties’ claims of irreconcilable
differences but rather, now that they were freed from the burden of umpiring a battle, would
evaluate the parties claims and assist in repairing the broken marriage. See In re Marriage of
McKim, 493 P.2d 868, 871 (Cal. 1972). As things have turned out, though, courts have
accepted the parties’ claims at face value. Writing less than a decade after California adopted
the “irreconcilable differences” standard, one scholar noted that not a single divorce petition
had since been denied for failure to establish that such differences existed. See R
IANE
T.
E
ISLER
, D
ISSOLUTION
: N
O
-F
AULT
D
IVORCE
, M
ARRIAGE
,
AND THE
F
UTURE OF
W
OMEN
10
(1977).
115
See Bradford, supra note 94, at 614.
116
See Difonzo, supra note 3, at 908 n.180.
117
Id.
118
Jana B. Singer, The Privatization of Family Law, 1992 W
IS
. L. R
EV
. 1443, 1474 (1992).
22https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 381
of prenuptial agreements, Posner v. Posner,
119
relied in part on the accelerating
acceptance of no-fault divorce.
120
In the post-Posner era, some courts have gone quite far in their willingness to
enforce prenuptial agreements. One of the most extreme—indeed, notorious—
examples of such judicial deference to private contractual aims is the 1990
Pennsylvania case Simeone v. Simeone,
121
which treated prenuptial agreements as if
they were ordinary business contracts:
[In the absence of actual fraud or duress,] contracting parties are normally
bound by their agreements, without regard to whether the terms thereof
were read and fully understood and irrespective of whether the agreements
embodied reasonable or good bargains . . . . Parties [to a prenuptial
agreement] would not have entered such agreements, and, indeed, might
not have entered their marriages, if they did not expect their agreements to
be strictly enforced.
122
To apply a less deferential standard in the case of prenuptial agreements, said the
court, would be a patronizing throwback to an age when “[p]aternalistic
presumptions and protections [sheltered] women from the inferiorities and
incapacities which they were perceived as having.”
123
Most courts today, however, although they willingly enforce prenuptial
agreements, recognize that these are not ordinary business contracts, but this
recognition has nothing to do with a desire to avoid the appearance of condescension
to women. Rather, this recognition proceeds from an awareness of the special
circumstances surrounding the execution of a prenuptial agreement. First, the parties
to a prenuptial agreement do not bargain at arms= length; “[t]heir relationship is one
of mutual confidence and trust which calls for the exercise of good faith, candor and
sincerity in all matters bearing upon the proposed agreement.”
124
Second, the parties
entering into a prenuptial agreement do so at a time when, through optimism or
careless rapture, they expect the agreement never to apply, or at least not to apply
until many years in the future, and therefore they cannot capably assess at the time of
119
233 So.2d 381 (Fla. 1970), rev’d on other grounds, 257 So. 2d 530 (Fla. 1972). As to
Posner’s status as the first case to depart from the per se rule of unenforceability, see
Developments, supra note 73, at 2078; Difonzo, supra note 3, at 938.
120
233 So. 2d at 384; see also ALI P
RINCIPLES
, supra note 36, ' 7.01 cmt. a (“The
nationwide abandonment of traditional fault divorce since the 1970s eliminated [the] absolute
barrier to premarital agreements.”).
121
581 A.2d 162 (Pa. 1990). When the agreement was signed, the prospective husband
was a neurosurgeon and the prospective wife an unemployed nurse. The bride was presented
with the contract on the eve of the wedding, and she signed it without the benefit of counsel.
Id. at 163.
122
Id. at 165, 166.
123
Id. at 165.
124
Friedlander v. Friedlander, 494 P.2d 208, 213 (Wash. 1972).
23Published by EngagedScholarship@CSU, 2005
382 CLEVELAND STATE LAW REVIEW [Vol. 53:359
contracting the impact that the contract=s terms are likely to have on them when its
enforcement is ultimately sought.
125
But how can courts, in deciding whether to enforce a prenuptial agreement,
balance this concern about the peculiarity of premarital bargains against their general
regard for contractual autonomy and their desire to allow private individuals to forge
relations on their own terms? The traditional method of balance—at least in
theory—was for courts to borrow from ordinary contract law the requirements of
voluntariness and conscionability but then, as a reflection of “the longstanding belief
that parties to be married are in a relationship of trust,”
126
to impose on the parties an
additional, extraordinary requirement of disclosure.
127
The Uniform Premarital
Agreement Act (UPAA),
128
promulgated in 1983 and now effective in 26 states,
129
tips the balance scales very far in favor of enforcement and does so by
simultaneously weakening the disclosure requirement and all but extinguishing the
conscionability requirement.
The UPAA borrows from traditional contract law the requirement of
voluntariness; under the Act a premarital agreement may not be enforced against a
party thereto if she proves that she “did not execute the agreement voluntarily.”
130
But the Act departs from traditional contract law principles by permitting the
contract to be enforced even if it is unconscionable, unless the party seeking to avoid
enforcement on that ground can also prove that she did not have actual or even
constructive knowledge of the other party=s property or financial obligations and that
she did not expressly waive, in writing, the right to receive such information.
131
125
ALI P
RINCIPLES
, supra note 36, ' 7.02 cmt. c. See generally Melvin Aron Eisenberg,
The Limits of Cognition and the Limits of Contract, 47 S
TAN
. L. R
EV
. 211 (1995).
126
Developments, supra note 74, at 2081.
127
“Parties to commercial agreements are not ordinarily bound to make affirmative
disclosures of information in their possession that gives them a bargaining advantage, so long
as they do not affirmatively misrepresent or conceal the truth.” ALI P
RINCIPLES
, supra note
35, at ' 7.04 cmt. g.
128
U
NIF
. P
REMARITAL
A
GREEMENT
A
CT
, 9C U.L.A. 35 (2001).
129
Judith T. Younger, Antenuptial Agreements, 28 W
M
. M
ITCHELL
L. R
EV
. 697, 716-17
(2001).
130
U
NIF
. P
REMARITAL
A
GREEMENT
A
CT
' 6(a)(1), 9C U.L.A. 48 (2001). The UPAA does
not define “voluntarily,” but presumably evidence of duress or undue influence would
undermine any inference of voluntariness. See Dennis I. Belcher & Laura O. Pomeroy, A
Practitioner
=
s Guide for Negotiating, Drafting and Enforcing Premarital Agreements, 37
R
EAL
P
ROP
. P
ROB
. & T
R
. J. 1, 11 (2002).
131
U
NIF
. P
REMARITAL
A
GREEMENT
A
CT
' 6, 9C U.L.A. 48-49 (2001).
(a)A premarital agreement is not enforceable if the party
against whom enforcement is
sought proves that:
(2)The agreement was unconscionable when it was executed an
d, before execution of
the agreement, that party:
(i) was not provided a fair and reasonable d
isclosure of the property or financial
obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the
property
or financial obligations of the other party beyond the disclosure provided; and
24https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 383
Thus, as long as a prospective husband fully discloses all his assets or the
prospective wife has constructive knowledge of his assets, even an unconscionable
prenuptial agreement will be enforced against a wife who voluntarily signs.
Furthermore, unconscionability—an issue of law, not of fact
132
—is to be determined
as of the time the agreement is entered into, not at the time enforcement is sought.
“[S]ubstantive unfairness at the time of enforcement is no longer a proper basis for
judicial invalidation,”
133
even if the increase in the husband=s wealth during the
marriage was largely attributable to the wife=s efforts.
134
The UPAA=s somewhat unbalanced balancing test does succeed in realizing one
of the Commissioners= stated goals: removing from the enforcement landscape the
“substantial uncertainty as to the [validity] of all, or a portion, of the provisions of
these agreements and [the] significant lack of uniformity of treatment of these
agreements among the states.”
135
But the UPAA=s method of achieving certainty and
uniformity sacrifices “virtually all principles that have been created by the common
law to prevent the enforcement of unfair agreements.”
136
My proposal of universal
unenforceability, without requiring such sacrifices, still offers the certainty and
uniformity that the Commissioners sought.
(iii) did not have, or reasonably could not have had, an adequate knowledge of the
property or financial obligations of the other party.
Id. (emphasis added). Som
e states, when they adopted the UPAA, altered the Commissioners=
language to make unconscionability a sturdier ground for objection. See, e.g., C
ONN
. G
EN
.
S
TAT
. ' 46b-36g(a)(2) (2004) (proof of unconscionability at the time of execution or at the
time when enforcement is sought suffices to prevent enforcement, even where full disclosure
of assets was made); I
OWA
C
ODE
' 596.8(2) (2003) (proof of unconscionability at the time of
execution suffices to prevent enforcement, even where full disclosure of assets was made).
Observe that the language of § 6 effectively assigns to the party seeking to avoid enforcement
(typically the wife) the burden of proving that the agreement fails to satisfy the legal standard
of voluntariness and conscionability. Indeed, some states that have adopted the UPAA require
that she meet that burden “by clear and convincing evidence.” See, e.g., N.J. S
TAT
. ' 37:2-38
(2005); R.I. G
EN
. L
AWS
' 15-17-6(b) (2004). Even some states that have not adopted the
UPAA likewise assign the burden, by statute or by judicial decision, to the party seeking to
avoid enforcement. See, e.g., M
INN
. S
TAT
. ' 519.11, Subd. 5 (2004); In re Estate of Benker,
296 N.W.2d 167, 169 (Mich. Ct. App. 1980) (a “death-focused” prenuptial agreement). Some
other non-UPAA states assign the burden to the party seeking enforcement. Ex parte
Williams, 617 So. 2d 1032, 1034 (Ala. 1992).
132
U
NIF
. P
REMARITAL
A
GREEMENT
A
CT
, ' 6(c), 9C U.L.A. 49 (2001).
133
Developments, supra note 74, at 2081.
134
The UPAA does permit a court to disregard a prenuptial provision purporting to reduce
or eliminate the challenging spouse’s rights to spousal support if the enforcement of the
provision would render the spouse eligible for public assistance at the time of separation or
dissolution. U
NIF
. P
REMARITAL
A
GREEMENT
A
CT
' 6(b), 9C U.L.A. 49 (2001).
135
U
NIF
. P
REMARITAL
A
GREEMENT
A
CT
, prefatory note, 9C U.L.A. 36 (1983).
136
Brod, supra note 7, at 276.
25Published by EngagedScholarship@CSU, 2005
384 CLEVELAND STATE LAW REVIEW [Vol. 53:359
IV. W
HY
E
NFORCING
P
RENUPTIAL
A
GREEMENTS
I
S
P
ER
S
E
I
NEQUITABLE
Marriage is a package deal; you cannot pi
ck and choose. A married person
cannot claim the shelter of the marital confidences privilege
137
and yet defy his
employer=s anti-nepotism policy against hiring the employee=s spouse. He cannot
claim special immigration status as a spouse
138
and yet exempt himself from the
presumption that a child born to a married couple is the offspring of the husband.
139
You cannot have “the perks without the works.”
140
This equitable principle, barring an individual from simultaneously claiming the
benefits and rejecting the burdens of a particular arrangement, enjoys a venerable
pedigree that can be traced at least as far back as Justinian
141
and takes many forms.
The formulation favored by Scottish law “is that a man shall not be allowed to
approbate and reprobate . . . .”
142
More commonly, modern Anglo-American legal
authorities treat the principle as a corollary of the equitable maxim: “He who seeks
equity must do equity,”
143
while others render the maxim more specifically: “[H]e
who derives the advantage ought to sustain the burden.”
144
Although this principle has broad application today, it was originally confined to
the law of wills,
145
where it was known as the doctrine of equitable election. “The
law does not permit a beneficiary in a will to accept that which benefits him and
reject that which operates to his prejudice.”
146
137
See, e.g., M
INN
. S
TAT
. A
NN
. ' 595.02(1)(a) (2000); M
ONT
. C
ODE
A
NN
. ' 26-1-802
(2003).
138
See 8 U.S.C. ' 1153(d) (2000).
139
See, e.g., Gammon v. Cobb, 335 So. 2d 261, 264 (Fla. 1976) (characterizing the
presumption as “one of the strongest rebuttable presumptions known to the law”); accord
Feazel v. Feazel, 62 So. 2d 119, 120 (La. 1952) (“the strongest presumption known in law”).
140
See James M. Donovan, An Ethical Argument to Restrict Domestic Partnerships to
Same-Sex Couples, 8 L
AW
& S
EXUALITY
649, 662 (1998).
141
See J. I
NST
. 2.20. p. 4.
142
See 2 C
HARLES
F
ISK
B
EACH
, J
R
., M
ODERN
E
QUITY
J
URISPRUDENCE
' 1068 (1892).
143
J
AMES
W. E
ATON
, H
ANDBOOK OF
E
QUITY
J
URISPRUDENCE
'' 65-66 (2d ed. 1923).
144
See, e.g., Am. Car & Foundry Co. v. Smock, 93 N.E. 78, 79 (Ind. Ct. App. 1910);
Fleming v. Taylor Fuel, Light & Power Co., 136 P. 228, 230 (Kan. 1913); Oneida County
Mobile Home Sales, Inc. v. Niagara Mohawk Power Corp., 407 N.Y.S.2d 89 (App. Div.
1978). And who among us can resist the Latin: qui sentit commodum sentire debet et onus?
B
LACK
=
S
L
AW
D
ICTIONARY
1414 (rev. 4th ed. 1968).
145
A
SHBURNER
’
S
P
RINCIPLES OF
E
QUITY
473-76 (Denis Browne ed., 2d ed. 1933); accord
B
EACH
supra note 142, ' 1070 (1892).
146
Oglesby v. Springfield Marine Bank, 69 N.E.2d 269, 274 (Ill. 1946); accord Jacobs v.
Miller, 15 N.W. 42, 45 (Mich. 1883) (“[A] person cannot claim under the instrument without
confirming it. He must found his claim on the whole and cannot adopt that feature or
operation which makes in his favor and at the same time repudiate or contradict another
feature or operation which is counter or adverse to it.”).
26https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 385
In Elmore v. Covington,
147
for example, X and Y had conveyed two houses to the
testator before testator=s death. When testator died, his will bequeathed the two
houses back to X and Y (plus $100 for each devisee). X and Y alleged that they had
conveyed the two houses to testator pursuant to a contract whereby testator had
promised to bequeath to them 9/13 of his estate, which amounted to more than the
value of the two houses. A bequest of 9/13 of the estate would entitle X and Y to
9/13 of every asset or to whichever whole assets (chosen by the court, presumably)
had a dollar value equal to 9/13 of the estate. But X and Y wanted to take the two
houses whole under the will, and then receive by way of damages the amount by
which the value of the two houses fell short of 9/13 of the estate. The court held that
X and Y had to elect either to accept the will (i.e., take the two houses and the $100
but nothing else) or to sue for breach of contract (in which case they would get 9/13
of every asset rather than the two houses whole). The court held that X and Y could
not simultaneously accept the benefits under the will and seek specific performance
of a promise notwithstanding the will.
In La
wrence v. Coffield,
148
Fritz and Clara were husband and wife, and all their
property was community property. Fritz died first, and in his will he bequeathed a
particular farm to Clara for life, and the remainder to tenants who had lived on the
farm for many years. He bequeathed the residue of the couple=s property to Clara.
Because the farm was community property, Fritz had the right to bequeath only half
of it; the other half belonged to Clara absolutely. Thus, when he bequeathed to the
tenants a remainder interest in the whole farm, he was bequeathing property that did
not belong to him. Some years later, Clara purported to convey to one Coffield her
entire one-half interest in the farm plus her life estate in the other one-half (that is,
the life estate in Fritz=s one-half that Fritz bequeathed to her in his will). The court
held that Clara no longer owned the “entire one-half interest” that she had purported
to convey. Because she had accepted and used income derived from the entire
residue rather than just the income from her community half, Clara had in effect
elected to accept the benefit of the will (enjoying all the residue), so she had to
accept the burden and thereby lost all remainder interests in both portions of the
farm.
It is important to note that the doctrine of equitable election does not depend for
i
ts operation on the testator=s intention. Even if Fritz, for example, genuinely
believed he had the power to bequeath the entire farm—that is, even if he did not
intend to put Clara to an election—the doctrine would still be applied and Clara
would lose her interest in the remainder of the farm if she accepted income from
Fritz=s one-half of the residue.
149
Indeed, it would be, according to Lord Eldon,
“against conscience” to allow her to enjoy Fritz=s property yet keep her own.
150
147
172 S.W.2d 809 (Tenn. 1943).
148
468 S.W.2d 544 (Tex. Civ. App. 1971); accord Andrews v. Kelleher, 214 P. 1056
(Wash. 1923).
149
See Neville Crago, Mistakes in Wills and Election in Equity, 106 L
AW
Q. R
EV
. 487, 495
(1990); see, e.g., Padbury v. Clark, 2 Macn. & G. [Macnaghten & Gordon=s English Chancery
Reports] 298 (1850), reprinted in 42 Eng. Rep. 115.
150
Ker v. Wauchope, 1 Bli. 1, 22 (1819), quoted in A
SHBURNER
, supra note 145 at 50.
27Published by EngagedScholarship@CSU, 2005
386 CLEVELAND STATE LAW REVIEW [Vol. 53:359
This equitable principle has been extended beyond the traditional area of wills.
151
In De Walsh v. Braman,
152
for instance, the plaintiff sought a court order in equity to
compel the defendant to convey a tract of land to plaintiff. Defendant had spent
money keeping the premises in repair, but he was no longer entitled to sue plaintiff at
law to recover the cost of those repairs because the statute of limitations barred the
debt. The court in equity held that plaintiff, as the price of getting the order directing
defendant to convey to plaintiff, had to pay defendant the amount that defendant had
expended in repairs, such debt being “an equitable right growing out of the same
subject matter.”
153
He who derives the advantage ought to sustain the burden.
And courts have quite properly applied the inverse of the principle: he who
refu
ses to sustain the burden ought not to derive the advantage. Thus, in Feliciano v.
Rosemar Silver Company,
154
the court held that if a man and woman were not
married to each other at the time the man sustained personal injuries, the woman
could not recover for loss of consortium even though they had cohabited for twenty
years. “[The value of marriage to society] would be subverted by our recognition of
a right to recover for loss of consortium by a person who has not accepted the
correlative responsibilities of marriage.”
155
If you want the perks, you must accept
the works. Who would accept the works if he could get the perks without them?
151
The doctrine of equitable election shares some underlying assumptions with the
taxpayer=s duty of consistency. See Steve R. Johnson, The Taxpayer
=
s Duty of Consistency, 46
T
AX
L. R
EV
. 537, 538 (1991) (“[A] taxpayer . . . should not be permitted to reduce his tax bill
by reporting that one thing is true and then, after expiration of the statute of limitations,
recanting and taking a different position on a later return.”). For instance, Eagan v. United
States, 80 F.3d 13 (1st Cir. 1996), involved contributions to a 401(k) plan paid by an insurance
company on behalf of a taxpayer. If the taxpayer was a common law employee of the
insurance company at the time the contributions were made, then, pursuant to Internal
Revenue Code of 1986 ' 402(a), he could exclude those contributions from his gross income
for the years in which the contributions were made but would have to include them in his
gross income in later years when they were actually distributed to him. If, however, he was
not a common law employee of the insurance company at the time of the contributions, then,
pursuant to § 402(b), he would have to include the contributions in his gross income when
they were paid into the plan but he could exclude them from gross income when they were
later distributed. Mr. Eagan had, in earlier years, claimed that he was a common law
employee of the insurance company, and therefore he had excluded the contributions from his
gross income in those earlier years. But when he received a distribution of those contributions
in a year after the statute of limitations barred the reassessment of his taxes for those earlier
years, he claimed that he had not in fact been a common law employee in those earlier years
and that, therefore, he should not be required to include those distributed contributions in his
gross income for that later year. The court held that the rule of consistency barred the
taxpayer from avoiding income tax in the later year pursuant to ' 402(b) by claiming he was a
nonemployee, when he had avoided income tax in the earlier years pursuant to ' 402(a) by
claiming he was an employee. 80 F.3d at 18-19.
152
43 N.E. 597 (Ill. 1896).
153
Id. at 600.
154
514 N.E.2d 1095 (Mass. 1987).
155
Id. at 1096 (emphasis added).
28https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 387
Today=s law, for reasons of which I thoroughly approve,
156
treats a married
couple as an economic unit: not in the old sense of coverture, with the husband
totally in command and the wife a mere cypher, but in the modern sense of two
willing persons liberally and reciprocally bound.
157
Indeed, federal tax law quite
famously treats them as an economic unit: spouses may file a joint income tax return
that makes no distinction between income earned by one spouse and income earned
by the other;
158
gratuitous transfers between spouses do not give rise to transfer tax
obligations;
159
sales or exchanges between spouses do not generate taxable gain or
deductible loss;
160
the list goes on. Generally, this unitary treatment produces tax
advantages for the couple, but not always.
161
For example, section 672(e) of the
Internal Revenue Code provides that for purposes of the grantor trust rules,
162
powers
or interests held by one spouse are deemed to be held by the other spouse. Suppose a
Grantor establishes a trust whose income, in the discretion of the Trustee, is to be
distributed either to A (unrelated to the Grantor), to B (also unrelated), or to the
Grantor. The Grantor will have to pay the income tax on all the income, even if the
income is in fact paid to A or B.
163
The Grantor cannot avoid this result by
substituting her spouse for herself as one of the permissible distributees (that is, by
authorizing the trustee instead to distribute income to or among A, B, and the
Grantor=s spouse). But she could avoid that result if she had a domestic partner and
substituted the partner for herself. And the Internal Revenue Code is quite clear; if
you qualify for the marriage bonuses, you must also accept the marriage penalties. A
married person cannot elect to be exempt from section 672(e).
156
See supra text accompanying notes 15-26.
157
It is not only law that presupposes that spouses are an economic unit. In practice,
spouses are much more likely than domestic partners to pool their assets. A study of
American attitudes found that about two-thirds of all spouses immediately after marriage
favored pooling their assets, while fewer than one-third of all unmarried heterosexual
cohabitants favored pooling them. J. Thomas Oldham, supra note 24, at 1424 n. 79 (citing
P
HILIP
B
LUMSTEIN
& P
EPPER
S
CWARTZ
, A
MERICAN
C
OUPLES
94-95 (1983). And an English
study found that 24% of unmarried heterosexual cohabitants in fact kept their money separate,
while only 6% of married couples did so. Oldham, supra note 24, at 1424 n.79 (citing Helen
Clezer & Eva Mills, Controlling the Purse Strings, 29 F
AM
. M
ATTERS
35, 35 (1991)).
158
See B
ORIS
I. B
ITTKER
, M
ARTIN
J. M
C
M
AHON
, J
R
., & L
AWRENCE
A. Z
ELENAK
, F
EDERAL
I
NCOME
T
AXATION OF
I
NDIVIDUALS
& 44.02[2] (3d ed. 2002).
159
I. R. C. '' 2056, 2523, 2651(c)(1) (West 2005).
160
Id. ' 1041.
161
Ronnie Cohen and Susan B. Morris, Tax Issues from “Father Knows Best” to “Heather
Has Two Mommies,” 84 T
AX
N
OTES
, Aug. 30, 1999 at 1309, 1314 n.50 (“Overall . . . , the
Congressional Budget Office estimated that the marriage bonus exceeds the penalty by
approximately $4 billion.”).
162
Ordinarily, a trust is a separate income-tax-paying entity, separate from the trust=s
grantor and the trust=s beneficiaries. In certain circumstances, however, a grantor may have
retained so much control over or so great an interest in the trust that the trust=s gross income
and deductions are imputed to the grantor. In such a case, taxable income realized by the trust
will be reported by the grantor on her return and taxed to her at her marginal rates. I.R.C.
'' 671-77 (West 2005).
163
I.R.C. ' 677.
29Published by EngagedScholarship@CSU, 2005
388 CLEVELAND STATE LAW REVIEW [Vol. 53:359
It is not only tax law that treats spouses as an economic unit. Many states have
enacted statutes that grant a surviving spouse the eligibility to continue certain
licensed businesses of the deceased spouse.
164
And in most states, “anyone who
injures a married person is deemed also to have injured the spouse of that individual,
and state laws allow the spouse to sue the tortfeasor for harm to the marital
relationship.”
165
An interesting recent case founded on this notion of spousal unity is
International Association of Firefighters, Local 2665 v. City of Ferguson.
166
The
city=s charter provided that certain city employees would be discharged if they
“directly or indirectly” campaigned for or contributed money to the campaign of any
candidate running for mayor or city counsel. Lloyd was a firefighter employed by
the city, and Alma was his wife. While it was clear that Lloyd would lose his job if
he campaigned for a mayoral candidate, Alma was concerned that Lloyd would lose
his job if she campaigned for a mayoral candidate. Clearly, Lloyd himself had
standing to challenge the city charter provision on First Amendment grounds. The
question was, did Alma have standing to contest the city charter provision on First
Amendment grounds? That is, would Lloyd=s losing his job amount to an injury to
Alma? The court held that it would be injury to Alma and that Alma therefore had
standing.
167
The economic unity of spouses is not a mere legal fiction or convenient (or
inconve
nient, as the case may be) concomitant of marriage. It is the very essence of
marriage cast in practical form: an ineluctable condition of the intimacy and
reciprocal dedication that is the marital bond.
It may be important to maintain property distribution and maintenance
rul
es that assume a blending of interests and award property and
maintenance at divorce based on a model of ongoing reciprocity, not
individual self-fulfillment. Most important, the ideal of unity suggests
that economic and political parity should be seen as a prerequisite for, not
an impediment to, loving and selfless and honorable marriages. When
both parties are capable of independence yet opt instead for a life of
interdependence, the union formed is far less likely to fall victim to
one-sided exploitation.
168
Because a marriage qua marriage has an economic existence, it must follow that
when one spouse seeks to dissolve the union, he cannot simply take his economic
164
See, e.g., D.C. C
ODE
' 3-405(f) (2004) (funeral director); I
ND
. C
ODE
A
NN
. ' 7.1-3-24-7
(2004) (liquor license). Cf. C
OLO
. R
EV
. S
TAT
. A
NN
. ' 39-3-203 (West 2003) (the surviving
spouse of an owner-occupier of residential real estate who had enjoyed special real estate tax
relief because he was over the age of 65 may continue to enjoy that tax relief even though she
herself is not over 65).
165
Bernstein, supra note 17, at 151 (citing D
AN
B. D
OBBS
, T
HE
L
AW OF
T
ORTS
842-43
(2000)).
166
283 F.3d 969 (8th Cir. 2002).
167
283 F.3d at 975. But see, e.g., English v. Powell, 592 F.2d 727, 730 (4th Cir. 1979) (“It
is a novel theory that a wife possesses such a property interest in her husband=s position that a
decrease in his salary gives her an actionable claim.”).
168
Baker, supra note 18, at 832 (footnotes omitted).
30https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 389
marbles and walk away. The spouses’ economic interests are so intertwined and
have so lost—or perhaps never had—their individual ancestry that judicial
intervention is required to oversee and even prescribe an equitable method of
economic severance.
169
This imposition of exit costs on the wealthier spouse is part
of the “works” of marriage that a person seeking the “perks” of marriage must, in
fairness, bear.
170
Allowing him, by means of some sort of idiosyncratic governing
instrument, to opt out of this marital property obligation is inequitable.
But to
whom is it inequitable? Inconsistency may be aesthetically unpleasing,
even hypocritical, but it does not rise to the level of “inequitable”—“against
conscience,” to use Lord Eldon=s more censorious phrase
171
—unless it does
consistent, predictable harm. The doctrine of equitable election
172
arose in the law of
wills as courts came to understand that allowing a legatee to accept those provisions
of a will that benefitted her while renouncing those that disfavored her had the effect
of injuring the testator=s other legatees. For example, suppose a testator=s will
provides, “I bequeath my 2,000 shares of General Motors stock to Smith, and I
bequeath the proceeds of my Aetna life insurance policy to Jones.” Suppose further
that the testator does indeed own the 2,000 shares of General Motors stock at his
death, but the designated beneficiary of the Aetna life insurance is Smith, and under
applicable law the testator may not change by will a designated beneficiary under a
life insurance contract.
173
In other words, when the testator purported to bequeath the
Aetna proceeds to Jones, he was in fact purporting to dispose of property that
belonged to Smith. Under the doctrine of equitable election, if Smith accepts the
benefit of the will (the 2,000 shares of General Motors stock), she will be compelled
to “accept” the detriment; that is, she will be compelled to convey the Aetna
insurance proceeds to Jones.
174
Allowing Smith to accept the stock without
conveying the insurance proceeds to Jones would deprive Jones of a benefit that the
testator intended to confer upon him. Indeed, if Smith elects to forgo the benefit of
the will and keep the Aetna proceeds, she will still receive the General Motors stock
in the first instance but she will be required to convey to Jones so much of that stock
as will compensate Jones for the loss of the insurance proceeds.
175
169
See supra text accompanying note 34-63.
170
See supra text accompanying note140.
171
See supra text accompanying note 150.
172
See supra text accompanying notes 145-50.
173
See, e.g., Wanda Ellen Wakefield, Annotation, Effectiveness of Change of Named
Beneficiary of Life or Accident Insurance Policy by Will, 25 A.L.R. 4th 1164 (1983).
174
See, e.g., In re Schaech=s Will, 31 N.W.2d 614 (Wis. 1948).
175
2 S
IMES
& S
MITH
, T
HE
L
AW OF
F
UTURE
I
NTERESTS
' 802 n.14 (Borron 3d ed. 2003).
Thus, if the insurance proceeds were $20,000 and the General Motors stock was worth
$80,000, Smith would have to convey one-quarter of the stock to Jones. But Smith could keep
the remaining three-quarters of her bequest of the stock; the principle at work here is
compensation, not forfeiture, since Smith had every right to retain the insurance proceeds that
she owned before the testator=s death. Id. But if Smith elects to take the benefit of the will,
she would be compelled to convey the entire insurance proceeds to Jones, even if the
insurance proceeds were worth more than the stock.
31Published by EngagedScholarship@CSU, 2005
390 CLEVELAND STATE LAW REVIEW [Vol. 53:359
Allowing married couples to customize, by prenuptial agreement, the regime for
property-division upon dissolution is unfair to—indeed, harms—same-sex couples
who possess all the requisites of marriage except the stipulated genders.
176
Suppose
Pat and Sandy are a same-sex couple who, because of local law, are forbidden to
marry but not forbidden to form a domestic partnership.
177
Domestic partnership
offers Pat and Sandy none of the social magic that marriage affords opposite-sex
couples.
178
More to the point, it offers them none of the material advantages either.
176
My equitable argument against the enforceability of prenuptial agreements is founded on
the belief that same-sex couples ought to be allowed to marry: that there exist no sound, moral
grounds for denying them that right. But an extended reassertion of same-sex marriage rights
on this occasion would produce an unwieldy and overlong article. Accordingly, I shall not try
to convince any readers of the justice of same-sex couples’ claim to marriage rights. I shall
simply assume that readers are convinced already or, if they are not, commend to them the
following writings in the hope that these will do the convincing: W
ILLIAM
E
SKRIDGE
, J
R
., T
HE
C
ASE FOR
S
AME
-S
EX
M
ARRIAGE
: F
ROM
S
EXUAL
L
IBERTY TO
C
IVILIZED
C
OMMITMENT
(1996);
M
ARK
S
TRASSER
, O
N
S
AME
-S
EX
M
ARRIAGE
, C
IVIL
U
NIONS
,
AND THE
R
ULE OF
L
AW
:
C
ONSTITUTIONAL
I
NTERPRETATION AT THE
C
ROSSROADS
(2002); Ralph Wedgwood, The
Fundamental Argument for Same-Sex Marriage, 7 J. P
OL
. P
HIL
. 225 (1999).
As of this writing, Massachusetts is the only Am
erican jurisdiction in which same-sex
couples may legally marry. Belgium, Canada, the Netherlands, and Spain also permit
same-sex couples to marry. World Briefing Americas: Canada: Gay Marriage Approved, N.Y.
T
IMES
, July 21, 2005, at A6.
177
Most states permit couples to form domestic partnerships, but the permission generally
takes the form of statutory silence rather than a specific enabling statute. A few states have
actually gone so far as to expressly prohibit domestic partnerships. See, e.g., G
A
. C
ONST
. art.
1, ' IV (2004) (prohibiting only same-sex domestic partnerships); L
A
. C
ONST
. art. XII, ' 15
(2005) (prohibiting both opposite-sex and same-sex domestic partnerships); N
EB
. C
ONST
. art.
I, ' 29 (2005) (prohibiting only same-sex domestic partnerships); O
HIO
C
ONST
. art. XV, ' 11
(2005) (prohibiting both opposite-sex and same-sex domestic partnerships). Amendments like
those in Georgia and Nebraska are particularly invidious. For a state to bar all couples from
forming domestic partnerships might be defended, however unsatisfactorily, as an attempt to
prevent the sanctioning of any form of cohabitation that does not have the benefit of a
marriage license. But for a state to allow opposite-sex couples to “live in sin” while
forbidding same-sex couples to do likewise cannot be defended at all. It is a naked display of
anti-gay animus, and the federal Constitution forbids such legislative displays. Romer v.
Evans, 517 U.S. 620, 632 (1996). Indeed, a federal district court, relying on Romer, recently
held that the Nebraska amendment violates the federal Constitution. See Citizens for Equal
Prot., Inc. v. Bruning, 368 F. Supp. 2d 980, 1002-04 (D. Neb. 2005).
178
Marriage in America functions as a kind of credential. It sends a cultural signal, not
only of the married person=s “normality” but also of his trustworthiness, his maturity, his
generosity, his attractiveness. Conversely, bachelorhood and spinsterhood send the opposite
signals: unreliability, callowness, selfishness, unattractiveness. A bachelor has not been
elected President of the United States since 1884, when Grover Cleveland was elected to his
first term, and he in fact married less than two years after the inauguration. 6 C
OLLIER
=
S
E
NCYCLOPEDIA
620 (1970). In 2005, Boeing Co. fired its married chief executive for having a
brief (heterosexual) affair with another Boeing employee, even though no pre-affair
harassment was alleged. Renae Merle, Boeing CEO Resigns Over Affair with Subordinate,
W
ASH
. P
OST
, Mar. 8, 2005, at A01. Although Boeing spokespersons protested that the
company=s decision was a reaction to the executive=s bad judgment rather than to his infidelity,
the fact remains that the company considered a man who was not faithfully married to be a
less reliable executive than a man who was faithfully married. Id. Film critic Pauline Kael,
32https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 391
Except in those very few states that, by statute, grant certain marital privileges to
“registered” unmarried couples,
179
Pat and Sandy have no reciprocal inheritance
rights, no homestead rights as a survivor, no standing to maintain an action for
wrongful death, no visitation rights if the other is hospitalized, no right to make
medical decisions if the other becomes incapacitated. Furthermore, those
jurisdictions that do grant particular rights to registered domestic partners frequently
impose preconditions on the formation of a domestic partnership that are not
imposed on marriages.
180
And even if Pat and Sandy married each other in
Massachusetts, the one American jurisdiction that recognizes same-sex marriages,
they still would be ineligible for any of the federal tax advantages granted to married
couples generally.
181
famous for her scathing wit, was once scolded by a listener (Kael was at that time the film
critic for Berkeley, California, radio station KPFA-FM) who attributed Ms. Kael=s acerbity to
her being unmarried: “[Dear] Miss Kael, I assume you aren=t marriedCone loses that nasty,
sharp bite in one=s voice when one learns to care about others.” See P
AULINE
K
AEL
, I L
OST
I
T
AT THE
M
OVIES
228 (1994).
The authors of the 1980 film comedy Air
plane! (Paramount Pictures) poked some
mischievous fun at our craving for marriage=s social magic. When one of the female flight
attendants, Randy, learns that the eponymous aircraft is in danger of crashing, she starts to cry:
D
R
. R
UMACK
. Randy, are you all right?
R
ANDY
. Oh, Dr. Rumack, I=m scared. I=ve never been so scared. And besides, I=m 26
and I=m not married.
D
R
. R
UMACK
. We=re going to make it, you=ve got to believe that.
[a Woman Passenger comes in]
W
OMAN
. Dr. Rumack, do you have any idea when we=ll be landing?
D
R
. R
UMACK
. Pretty soon, how are you bearing up?
W
OMAN
. Well, to be honest, I=ve never been so scared. At least I have a husband.
[Randy cries harder]
A
IRPLANE
! (Paramount Pictures 1980), available at http://www.imdb.com/title//tt0080339/
quotes.
The wonderful phrase “social magic” is not my own. See La
wrence Lessig, The
Regulation of Social Meaning, 62 U. C
HI
. L. R
EV
. 943, 959 n.42 (1995).
179
See C
AL
. F
AM
. C
ODE
'' 297-299.6 (West 2004) (“domestic partners”); N.J. S
TAT
. A
NN
.
'' 26:8A-1 to -12 (West Supp. 2005) (“domestic partnerships”); V
T
. S
TAT
. A
NN
. tit. 15
'' 1201-07 (2002) (“civil unions”); 2005 Conn. Acts 10 (January Sess.) (“civil union”).
Hawaii has created the status of “reciprocal beneficiaries,” H
AW
. R
EV
. S
TAT
. '' 572C-1 to -6
(1999), who, upon registration, are granted a few mutual rights, but reciprocal beneficiaries,
unlike the parties registering under the California, Connecticut, New Jersey, or Vermont
statutes, need not intend to make mutual emotional commitments and do not receive most of
the state privileges attending marriage. Id. ' 572C-6.
180
California and New Jersey, for example, require the partners to share the same
residence before they can register as domestic partners. C
AL
. F
AM
. C
ODE
' 297(b)(1) (West
2004); N.J. S
TAT
. A
NN
. '' 26:8A-4(b)(1) (West Supp. 2005). No such cohabitation
requirement is—or constitutionally may be—imposed on would-be spouses. Turner v. Safley,
482 U.S. 78, 95-96 (1987). See generally Jeffrey G. Sherman, Domestic Partnership and
ERISA Preemption, 76 T
UL
. L. R
EV
. 373, 386-89 (2001).
181
Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 4219 (1996) (codified as
amended at 1 U.S.C. ' 7 (2000), 28 U.S.C. ' 1738C (2000)):
In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpr
etation of the various administrative bureaus and agencies of the United States,
the word “marriage” means only a legal union between one man and one woman as
33Published by EngagedScholarship@CSU, 2005
392 CLEVELAND STATE LAW REVIEW [Vol. 53:359
Compared with a married, opposite-sex couple, Pat and Sandy have only one
advantage as domestic partners: at least, it is an advantage for the wealthier partner.
The partner may, by contractual prearrangement, limit his or her financial obligations
should the partnership dissolve. So long as heterosexual legislators (and their
heterosexual constituents) can continue to enjoy all the advantages of marriage and
yet capture, by means of enforceable prenuptial agreements, the one advantage still
available to same-sex couples in domestic partnerships, they will have little incentive
to end this invidious discrimination
182
either by creating for same-sex couples a more
robust domestic partnership or by extending marriage rights to same-sex couples.
The intentional exclusion of same-sex couples from the benefits of marriage
reflects a v
iew of marriage as a sacred institution whose essence endures
independently of the shifting preferences of legislatures and citizens.
183
But this
view of marriage was repudiated by the prenuptial agreement revolution of the
1970s. Courts began to enforce prenuptial agreements only when they came to see
marriage not as a sacred union but as a legal arrangement shaped for the convenience
of spouses and would-be spouses.
184
And if marriage is purely a creature of secular
law, offering by legislative fiat a number of disparate accompaniments designed to
keep the package desirable (e.g., testimonial privilege, income-splitting for tax
purposes, enforceable prenups to keep the exit costs low), then no logical basis exists
for restricting that package to opposite-sex couples.
185
The argument for excluding
husband and wife, and the word “spouse” refers only to a person of the opposite sex
who is a husband or a wife.
Id.
182
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex
Discrimination, 69 N.Y.U.L. R
EV
. 197, 216-19 (1994).
The central outrage of [male-male sex] is that a man is reduced to the status of a
woman, which is understood to be degrading
. Just as miscegenation was threatening
because it called into question the distinctive and superior status of being white,
homosexuality is threatening because it calls into question the distinctive and superior
status of being male.
Id. at 235-36
. See also supra note 177 and accompanying text.
183
For example, Congressman Roscoe Bartlett (R-Md.) made the following remarks on the
floor of the United States House of Representatives with respect to H.J.. Res. 106, the
Marriage Protection Amendment:
Mr. Speaker, there seems to be some confusion as to what constitutes marriage. I
n the
Christian community, and we are a Christian Nation, you can affirm that by going
back to our Founding Fathers and their belief in how we started, among Christians,
marriage is generally recognized as having started in the Garden of Eden. You may
go back to Genesis to find that and you will note there that God created Adam and
Eve. He did not create Adam and Steve. A union between other than a man and a
woman may be something legally, but it just cannot be a marriage, because marriage
through 5,000 years of recorded history has always been a relationship between a man
and a woman.
150 C
ONG
. R
EC
. H7888-02 (2004).
184
See supra text accompanying notes 88-93.
185
Indeed, the benefits derived by society when citizens are freed from the pressures of
intimacy-competition (and thereby permitted to direct more of their energies outward toward
the community at large) would presumably increase if that freedom were made available to
same-sex couples. See supra notes 17-19, and accompanying text.
34https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 393
same-sex couples from marriage necessarily relies on the “sacredness” notion. But
the recent and now-cherished availability of prenuptial agreements, which allow
spouses to slip their sacred bonds inexpensively, undercuts that supposed
commitment to sacredness and exposes this exclusionary policy as simply a policy of
discrimination designed to maintain a social and legal hierarchy based on sexual
orientation. Reviving the old rule that barred the enforcement of prenuptial
agreements would somewhat mitigate this discrimination by reducing the range of
the hypocrisy used to justify the discrimination and by denying married couples the
inequitable opportunity of enjoying the perks without the works.
When the shoe is on the other foot and new circumstances provide same-sex
couples with more household options than are available to opposite-sex couples, the
authorities have refused to tolerate such “reverse” discrimination for long. Less than
a year after Vermont=s groundbreaking civil union statute became effective,
186
the
University of Vermont, which had been granting benefits to both married couples
and same-sex domestic partners, announced that henceforth same-sex partners would
qualify for university benefits only if they formally established a civil union and
obtained a civil union license pursuant to the Vermont statute.
187
“A university
spokesman said that not instituting the policy could be seen as discriminatory
against heterosexual couples in long-term relationships[,] who must be married to
obtain spousal benefits.”
188
Shortly after the Supreme Judicial Court of
Massachusetts held that the state=s constitution required that same-sex couples be
permitted to marry on the same terms as opposite-sex couples,
189
Boston=s Beth Israel
Deaconess Medical Center announced that it would eliminate domestic-partner
benefits for same-sex couples, for reasons analogous to those given by the University
of Vermont. If same-sex couples wanted the Medical Center=s employee benefits,
the couples had to marry.
190
Just as these employers quite properly refused to allow same-sex couples to enjoy
the perks (employee fringe benefits) without the works (marriage or registration)
where opposite-sex couples could not, so the law should refuse to allow opposite-sex
couples to enjoy the perks (marriage=s social and economic magic) without the works
(the prospect of equitable distribution) where same-sex couples cannot.
V. S
PECULATIONS
A
BOUT
S
TRATEGIC
B
EHAVIOR
Would a rule barring the enforcement of prenuptial agree
ments adversely affect
the number of marriages? That is, are there so many people whose willingness to
186
“An Act Relating to Civil Unions,” V
T
. S
TAT
. A
NN
. tit. 15 '' 1201-07 (2005) (effective
Apr. 26, 2000).
187
Richard Higgins, UVM Revises Domestic-Partner Policy Legal Unions Now Required,
B
OSTON
G
LOBE
, Sept. 28, 2000, at B3.
188
Id. (emphasis added); see also Sherman, supra note 180, at 385 n.37.
189
Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
190
Equal Marriage, Equal Treatment, T
HE
A
DVOCATE
, June 8, 2004, at 20. But see
Kimberly Blanton, Benefits for Domestic Partners Maintained, B
OSTON
G
LOBE
, Aug. 22,
2004, at G1 (noting that the Medical Center was persuaded to suspend its decision to abolish
domestic partner benefits, inasmuch as a pending amendment to the state constitution casts
doubt on the permanence of same-sex marriage rights in Massachusetts).
35Published by EngagedScholarship@CSU, 2005
394 CLEVELAND STATE LAW REVIEW [Vol. 53:359
marry depends on their power to avoid equitable distribution upon divorce that the
marriage rate would go down measurably if that power were removed?
191
This
question of incentive is worth some speculation.
192
Before indulging in that speculation, however, I must observe that an affirmative
answer to my question—that is, a finding that the marriage rate would indeed go
down if my proposal were adopted—does not necessarily argue against the proposal.
As Professor Baker has urged, marriages conditioned on a prenuptial waiver may be
less than deserving of all the encouragement and deference that society gives them.
193
Now some readers might object to the dismissal of such marriages. They might say,
if an impecunious woman must choose between remaining single and entering into a
financially one-sided marriage, who are we to disparage the latter choice? “[F]or
those without power, sometimes the only alternative to a bad bargain is no bargain at
all, and it is not clear why it always would be to someone=s benefit to have that
choice taken away. . . . There may be situations when a woman would only be able to
marry if she were able to bind herself to a premarital agreement, and she would
prefer to be married with the agreement rather than unmarried and >protected= from
that agreement.”
194
Two responses come to mind. First, my objection to prenuptial agreements does
not spring from the belief that they hurt women. It springs from a belief that they are
inequitable, given the rationale for the “tremendous . . . subsidies” that our society
confers on married persons on account of their marital status.
195
And to perpetuate
this inequity in the hope of benefitting marriageable women simply shifts the locus
of victimization without addressing the root causes of women=s financial
disadvantage. My second response is that eliminating prenuptial agreements might
actually enhance women=s bargaining power. Under current law, a woman might be
loath to reject a marriage proposal conditioned on her signing a prenup for fear that if
she declined to sign it, her suitor would look elsewhere and find a woman who was
willing to sign. Under my proposal, she would compete for her beau on her merits,
not on her submissiveness. A man seeking the benefits of marriage would not be
able to shop around for a more tractable candidate; he would have to choose between
a life of celibacy and a life of marriage in the shadow of equitable distribution.
When one studies the American marriage rate over the last half-century, one
notes that significant events in the shift toward routine enforcement of all prenuptial
agreements—the Posner case (1970),
196
the Uniform Premarital Agreement Act
(1983),
197
and the Simeone case (1990),
198
for instance—seem to have had no
191
Throughout this discussion, we shall assume that it is the man who is the wealthier and
more independent of the two prospective spouses, see generally, Brod, supra note 7, and that
if a change in the enforceability rules were to have any effect on marriage rates, it would have
its effect by influencing men=s behavior rather than women=s.
192
Unfortunately, speculation is all that is possible; the data necessary to support a true
regression analysis have not been collected.
193
See Baker, supra note 18, at 832.
194
Bix, supra note 5, at 206, 204.
195
See supra note 9 and accompanying text.
196
See supra note 5 and accompanying text.
197
See supra note 128 and accompanying text.
36https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 395
observable impact on the statistics.
199
The following graph illustrates the changes in
the annual American marriage rate (marriages per 1,000 total population
200
) from
1953 to 2003.
201
0
2
4
6
8
10
12
1
9
5
3
1958
1
9
6
3
1968
1
9
7
3
1978
1983
1
9
8
8
1993
1
9
9
8
2003
Year
Marriage rate
If the marriage rate and the enforceability of prenuptial agreements bore some
positive relation to each other, one would expect the marriage rate to have increased
198
See supra note 121 and accompanying text.
199
Another year that might provisionally be supposed to have affected marriage rates is
1992. The Employee Retirement Income Security Act of 1974 (“ERISA”), Pub. L. No.
93-406, 88 Stat. 829 (1974) (codified as amended at 29 U.S.C. '' 1001-1461 (1994 & Supp. V
1999)), guarantees certain benefits to the surviving spouse of an employee covered by an
employer=s pension benefit plan: benefits that cannot be taken away without the spouse=s
written consent. ERISA ' 205, 29 U.S.C. ' 1055. See generally 1 M
ICHAEL
J. C
ANAN
,
Q
UALIFIED
R
ETIREMENT
P
LANS
' 7.16[C]-[F] (2005). Back when the provision was still new,
many practitioners wondered whether a provision in a prenuptial agreement could serve as an
effective waiver of this ERISA-mandated benefit, but in 1992 a number of cases made it clear
that the benefit could not be waived prenuptially. See, e.g., Nellis v. Boeing Co., 1992 U.S.
Dist. LEXIS 8510 (D. Kan. 1992); Zinn v. Donaldson Co., 799 F. Supp. 69 (D. Minn. 1992);
Hurwitz v. Sher, 789 F. Supp. 134 (S.D.N.Y. 1992), aff
=
d, 982 F.2d 778 (2d. Cir. 1992).
Interpreting ERISA ' 205(c)(2), 29 U.S.C. ' 1055(c)(2), these courts held that only an
employee=s “spouse” can effectively waive her ' 205 rights; and at the time of signing a
prenuptial agreement she is not yet a spouse but only a fiancée. Thus, beginning in 1992,
prospective husbands knew very well that a prenuptial agreement would not be enforced to the
extent it purported to dispose of the wife=s survivorship rights in the husband=s pension. It
would be unsound, however, to regard these 1992 developments as a trial run for my proposal,
inasmuch as my proposal deals with enforceability on divorce, not with the much less
controversial questions of enforceability on death. See supra note 5 and accompanying text.
ERISA does not mandate any spousal benefits in the event of divorce.
200
For census years, “population” means population enumerated as of April 1 of that year.
For all other years, population is estimated as of July 1.
201
These statistics were collected from the relevant issues of the Ctrs. for Disease Control
& Prevention, U.S. Dept. of Health & Human Servs., Monthly Vital Statistics Reports.
37Published by EngagedScholarship@CSU, 2005
396 CLEVELAND STATE LAW REVIEW [Vol. 53:359
in the years since the agreements first became routinely enforceable. Yet, except for
a brief upsurge in the late 1970s and early 1980s, the marriage rate seems to have
fallen steadily over the past thirty-five years. And in the years from 1958 to 1969,
years when divorce-focused prenuptial agreements were not enforceable, the
marriage rate increased rather sharply.
Fluctuations in the marriage rate seem to have occurred independently of
devel
opments in the law of prenuptial agreements. Those who have compiled and
studied these data attribute the fluctuations to “demographic and behavioral
changes”
202
One reason for the recent decline in the marriage rate is that the majority
of the very large baby boom cohort (people born between 1946 and 1964)
have aged past their twenties and thirties, which are the peak marriage
years. In addition, it has been estimated that the percent of adults
expected [ever] to marry has dropped from 95 to 90 percent.
The general decline reflected in the marriage rate per 1,000 population is
also
evident in rates for the population eligible to marry, unmarried men
and women 15 years of age and over. These rates have been declining for
more than 20 years and were lower in 1994 than in 1993. The marriage
rate per 1,000 unmarried women 15 years of age and over in 1994 (51.5)
was 2 percent lower than the rate in 1993 (52.3). The decline in the
comparable marriage rate for unmarried men was 3 percent, from 61.4 in
1993 to 59.5 in 1994.
203
If one is concerned about minimizing strategic behavior in connubial decisions,
one must admit that prenuptial agreements themselves provoke considerable strategic
behavior. For example, scholars and practitioners have long recommended that
prospective spouses include a “sunset” provision in their prenuptial agreements: a
provision that phases out or abruptly eliminates contractual limitations on each
spouse’s claims to the other’s property after the marriage has lasted for a specified
number of years. “[P]renuptial agreements are designed to govern a relationship not
yet begun, one that may be fragile at the time of drafting but grows strong and
durable over the years.”
204
Yet this seemingly benign provision can actually goad an
202
G
OPAL
K. S
INGH
, T.J. M
ATHEWS
, S
ALLY
C. C
LARKE
, T
RINA
Y
ANNICOS
& B
ETTY
L.
S
MITH
, C
TRS
. F
OR
D
ISEASE
C
ONTROL
& P
REVENTION
, A
NNUAL
S
UMMARY OF
B
IRTHS
,
M
ARRIAGES
, D
IVORCES
,
AND
D
EATHS
: U
NITED
S
TATES
, 1994 (1995), available at
http://www.cdc.gov/nchs/data/mvsr/mv43_ 13.pdf.
203
Id. The authors of the summary do not specify the “behavioral changes” that have
reduced “the percent of adults expected [ever] to marry,” but presumably these changes
include the increased social acceptability of nonmarital cohabitation, out-of-wedlock births,
and homosexuality (that is, less pressure on gay people to choose marriage as a way of
hiding), and a general pessimism about marriage engendered by the discouragingly high
divorce rate. See generally Robert D. Mare & Christopher Winship, Socioeconomic Change
and the Decline of Marriage for Blacks and Whites, in T
HE
U
RBAN
U
NDERCLASS
175
(Christopher Jencks & Paul E. Peterson eds. 1991).
204
Leah Guggenheimer, A Modest Proposal: The Feminomics of Drafting Premarital
Agreements, 17 W
OMEN
’
S
R
IGHTS
L. R
EP
. 147, 207 (1996); see also, Bix, supra note 5, at 179-
82.
38https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
2005-06] PRENUPTIAL AGREEMENTS 397
ambivalent spouse into divorce proceedings as the sunset deadline approaches, lest
he forfeit the financial insulation the agreement provides him.
205
Indeed, it is difficult to envision a legal design that does not invite strategic
behavior. In In re Honigman,
206
a man bequeathed to his wife, whom he had come
to loathe,
207
the rather odd sum of $2,500 outright plus a life interest in one-half of
the residue of his estate.
208
Why did this unhappy husband make this somewhat
curious bequest? Why not leave her nothing at all? Or why not leave her $500
instead of $2,500? New York’s elective share statute at the time granted a spouse in
Mrs. Honigman’s position the right to renounce her husband’s will and claim one-
half of his estate outright, regardless of how little the will itself purported to leave
her. However, this same statute also denied the wife this “forced share” in the event
the husband’s will left her at least $2,500 outright and bequeathed at least one-half
the residue in trust for her lifetime benefit.
209
Now Mr. Honigman’s motive for his
curious bequest becomes clear. The amount was neither whimsical nor arbitrary; it
was strategic. He left her the minimum amount that would bar her from claiming her
elective share. Contractual terms, common law default rules, and statutory rules all
prompt individuals to act differently from the way they would act in the absence of
those terms or rules, so it is foolish to object to a rule merely because it will cause
individuals to alter their behavior in calculating ways.
VI. C
ONCLUSION
Prenuptial agreements should be held per
se unenforceable to the extent they
purport to limit a spouse’s entitlements to alimony or equitable distribution of
property in the event of divorce. To allow married persons to cherry-pick the
concomitants of their marriage—to avail themselves of the advantages the law
confers upon them while evading, by governing instrument, the burdens the law
would impose upon them—is inequitable. If they want the perks, they must take the
works. If a marriage-bent couple wishes to preserve the low exit costs associated
205
Donald Trump and his second wife, Marla Maples, executed a prenuptial agreement that
capped her rights in Mr. Trump’s property in the event of divorce at $1 million to $5 million,
instead of the equitable distribution share of Trump’s total wealth to which she would have
been entitled without the contract. The contract contained a sunset provision, however, and
Trump filed for divorce only eleven months before the sunset provision extinguished the
contractual cap. The New York Times reported that Trump’s timing in filing for divorce was
not coincidental. “[He] has been forced economically to act.” Bruce Weber, Donald and
Marla Are Headed for Divestiture, N.Y. T
IMES
, May 3, 1997, at 127. Had Jack Welch acted
before the sunset deadline in his prenuptial agreement, he would have saved a great deal of
money. See Keil, supra note 79. Actor Tom Cruise and his second wife separated only days
before their tenth anniversary. At the time Cruise filed his petition for divorce, “California
courts presumptively awarded lifetime support to spouses married at least ten years before
separation. In marriages of shorter duration, the California custom ha[d] been to award
support for, at most, half the duration of the marriage.” Oldham, supra note 24, at 1422.
206
168 N.E.2d 676 (N.Y. 1960).
207
Id. at 677.
208
Id.
209
J
ESSE
D
UKEMINIER
& S
TANLEY
M. J
OHANSON
, W
ILLS
, T
RUSTS
, & E
STATES
172 (6th ed.
2000).
39Published by EngagedScholarship@CSU, 2005
398 CLEVELAND STATE LAW REVIEW [Vol. 53:359
with domestic partnership, then the couple must settle for domestic partnership in its
entirety.
40https://engagedscholarship.csuohio.edu/clevstlrev/vol53/iss3/3
