PLANNING FOR LOVE - THE POLITICS OF PRENUPTIAL AGREEMENTS

This note challenges the stereotypes that define the role of prenuptia l agreements in contemporary American society. Specifically, this note questions the assumption that only the rich, the selfish, or the merc enary can benefit from a prenuptial contract. Allison Marston examines the increasing use of prenuptial agreements over the past twenty year s and describes the types of people who should consider drafting them. Ms. Marston summarizes the law about prenuptial contracts and the kin ds of provisions that courts will and will not enforce. She then place s prenuptial agreements in a legal, historical, and psychological cont ext. Ms. Marston argues that the villification of prenuptials is a cur ious, and even irrational, response to a document that merely supplant s state-written contracts governing the disposition of assets at the e nd of a marriage, has a long history in Anglo-American society, and po tentially improves communication on important issues before marriage. Nevertheless, this note acknowledges that many prenuptial agreements h ave been signed that disproportionately hurt one of the marital partne rs. Ms. Marston argues that the solution to this problem is not to lim it the enforcement of these agreements but to seek to ensure that each party has full knowledge of his or her rights and has the opportunity to negotiate the terms of the contract. To this end, she concludes th at courts should require that each party entering into a prenuptial ag reement have had the benefit of consulting with independent counsel pr ior to the signing of the contract This reform, not yet embraced by an y jurisdiction, would preserve parties' freedom of contract while prev enting the coercion possible in negotiations that take place in the hi ghly-charged atmosphere of an impending wedding.