Tightening the Knot: Relational Contracting for a Better Future

I. Introduction

In the United States Supreme Court’s landmark case Obergefell v. Hodges, which recognized the fundamental right of same-sex couples to marry, Justice Kennedy observed that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations . . . .”^[1] Regardless of what stance you take with respect to the propriety of legal recognition of same-sex marriage, it cannot be denied that recent generations in American society have worked a significant change in the nature and meaning of marriage.^[2] But what is the new meaning of marriage? What is its nature? And what is the consequence of such sweeping change?

II. Deconstitution or Reconstitution?

Even as marriage becomes accessible to more individuals,^[3] the state of marriage as an American institution is decaying.^[4] Marriage rates have seen a steady and significant decline in the last forty years^[5] while divorce rates have been climbing for some demographic groups,^[6] particularly adults aged fifty and older.^[7] And millennials (individuals born roughly between 1980 and 1996)^[8] appear to be dodging the statistical risk of divorce by avoiding getting married in the first place, or at least by waiting longer to do so.^[9] With the risk of divorce being as high as it is—by some measures, forty-two to forty-five percent^[10]—perhaps it is time to reevaluate what marriage means.

But first, why bother?^[11] What is the point of marrying, anyway? The staggering rise in extramarital cohabitation in the United States suggests that more and more people every year are having difficulty answering that question,^[12] and for good reason. Marriage has arguably been deinstitutionalized.^[13] That is, several cultural, social, and legal shifts that have occurred over the last few decades have destabilized, and perhaps in some cases entirely dismantled, the norms by which individuals’ marital-type relationships were once guided.^[14]

Economic changes are one example of the shifting marital context contributing to the dismantling of its guiding norms.^[15] Over the last few decades, the proportion of women in the workforce has increased, and the ratio of men’s to women’s wages has been declining, making economic independence for women much more readily attainable.^[16] Moreover, technological advancements have enabled women and men alike to outsource or increase the efficiency of much of the in-home labor that once made it difficult for both romantic partners to be employed.^[17] The number of gainfully employed adult men has also been declining, making them less marriageable.^[18] As a result, “[t]he distinct roles of homemaker and breadwinner” have deteriorated, and couples in marital-type relationships are increasingly having to negotiate new divisions of home labor and (where applicable) child-rearing.^[19]

Changes in sexual relations and expectations are another example of deteriorating guiding norms.^[20] Historically, sexual intimacy was relegated socially, religiously, and even legally, to the marital realm.^[21] It was socially and morally condemnable to engage in extramarital sexual relations,^[22] but getting married conveyed a right and a duty to have sex.^[23] For example, prior to the 1970s, all states, either by statute or common law, afforded husbands “marital rape exemption[s]” because a husband simply could not be guilty of the rape of his wife, regardless of whether the sex act was forcible and against the wife’s will.^[24] As recently as 1980, forty-four states still retained such implicit husband-exclusions in their rape laws.^[25] “[I]f a woman [was] legally married and living with her husband, he ha[d] a right under the law to force sexual relations on her with violence and cruelty at any time he so desire[d].”^[26] However, changes in the law recognizing and prohibiting marital rape,^[27] the sexual revolution of the 1960s and 1970s,^[28] and increasing social acceptance of extramarital sex and cohabitation^[29] mean at least two things for the marital institution: it is no longer required before sex can be had, nor is participation in it a guarantee that sex will be had.^[30]

Additionally, the last four decades or so have also ushered in drastic changes in the availability of marital dissolution.^[31] Prior to the 1960s and '70s, a spouse had to show cause in order to obtain a divorce,^[32] and some jurisdictions even required “positive proof” of the fault alleged as grounds for divorce.^[33] In some instances, married couples would go so far as to stage fabricated scenes of adultery that could be photographed for evidence of a fault that did not actually exist.^[34] But “[b]eginning in California[] in the 1960s, the no-fault divorce movement swept the country, with all states eventually enacting some form of no-fault divorce,”^[35] and with such movement, divorce rates naturally rose.^[36] One scholar suggests that “[n]o-fault divorce law signals that marriage is a transitory commitment . . . that is easily set aside.”^[37]

Most recently, legal recognition of same-sex marriage has arguably contributed to the deinstitutionalization of marriage.^[38] “Lesbian and gay couples who choose to marry must actively construct a marital world with almost no institutional support.”^[39] Because the traditional marriage’s gender-differentiated divisions of labor and responsibility necessarily cannot be fitted to a marriage characterized by gender homogeneity, same-sex couples are having to negotiate these labor divisions and establish marital patterns for themselves largely from scratch.^[40]

Moreover, because “throughout most of human history, the fundamental purpose of marriage was to promote procreation,”^[41] social and legal recognition and support of same-sex marriage indicates a growing abdication of this view of marriage.^[42] In fact, one of the prominent arguments against same-sex marriage is the very notion “that it undermines the traditional institution of marriage.”^[43] “[M]any are convinced that traditional marriage of one man and one woman promotes the interests of children and the broader society by having both a mother and father.”^[44] However, “[e]ven under the challenging circumstances of social and legal inequality between same-sex and different-sex couples, it’s clear that same-sex couples are as good at parenting as their different-sex counterparts, and their children turn out fine.”^[45]

In any case, the fact that same-sex couples are being afforded ever-increasing access to what was once a heterosexual-exclusive legal status signals the end of that exclusivity and a legal shift in favor of plurality, “allowing individuals to pursue their own vision of the good life in forming family relationships.”^[46] And while there are compelling arguments that same-sex marriage is not analogous to multiple marriage,^[47] “[s]ome observers suggest that even polygamous relationships are becoming ‘normalized,’ pointing to the popularity of the television series Big Love and Sister Wives.”^[48]

Cultural changes like these and others, such as advocacy of alternative love styles like polyamory,^[49] increased access to contraceptives,^[50] and the rise in single parenthood^[51] have worked considerable changes on the institution of marriage. The purpose of marriage has shifted, from a union formed for companionship and characterized by deriving emotional satisfaction from fulfilling certain normative roles,^[52] to a stage of self-actualization.^[53] That is, in the earlier part of the 20th century, the marital paradigm was that of the “companionate marriage,” in which “husbands and wives . . . usually adhered to a sharp division of labor,” but were also “each other’s companions—friends, lovers—to an extent not imagined by the spouses in the institutional marriages of the previous era.”^[54] Yet, since the 1960s and '70s,^[55] “[t]he central purpose of modern marriage is increasingly recognized to be the fulfillment of the individual.”^[56] This new marriage paradigm is characterized by self-fulfillment and independence, communication, and individualized partnership patterning.^[57]

What does that look like, exactly? How does one individualize a relationship that is by definition dual (or multiple)^[58] and hopefully cooperative? “[A]s traditional sources of identity such as class, religion, and community lose influence,” we begin to try to locate our identity through our intimate relationships.^[59] But therein lies the rub: if two individuals are both trying to find themselves through their relationship, and the very existence of their relationship is premised on the notion that it is a vehicle by which they can express their individuality, what space is left for cooperation and partnership? If the new, individualized marriages are typified by things like personal and emotional fulfillment, and exist in a legal context allowing fault-free, unilateral dissolution,^[60] what makes marriage anything more than transitory as we, as individuals, move through potentially disparate and incongruous phases of self-discovery?

Yet, despite the rising divorce rates,^[61] declining marriage rates,^[62] and dismantled marital norms,^[63] there still remain compelling public policy reasons to promote and support marriage.^[64] “Married adults are better adjusted than never married, remarried, and – especially – separated/divorced adults” by several measures, including psychological, social, financial, and physical health measurements.^[65] Not to mention, married people “are found to have more (and, on average, better-quality) sex than single people.”^[66]

Children, too, appear to fare better in two-parent households.^[67] “Children raised by single parents are more likely to display delinquent and illegal behavior,”^[68] whereas “[a] growing consensus exists that being raised in a well-functioning two-parent family is generally good for children.”^[69] “Studies find that children do best on many measures—school achievement, rates of juvenile delinquency, social interaction skills, and later marital happiness—when they are raised by both biological parents who are in a relatively stable and happy marriage.”^[70]

This is not to say that children from unmarried-, same-sex-, or step-parent households are necessarily in crisis. “Studies find that between two-thirds and three-quarters of children in stepfamilies do not exhibit serious emotional or behavioral problems.”^[71] Generally, the well-being of the child will be most dependent on the quality of the marriage or the level of conflict in the household.^[72] And, as mentioned above,^[73] studies show that the long-term well-being of children raised by same-sex couples is comparable to that of children raised by heterosexual couples,^[74] though there is less data on child well-being with respect to extramaritally cohabiting adults.^[75] What is certain, however, is that across socioeconomic and educational divides the rate of children born to unwed mothers has increased dramatically in the last thirty to forty years.^[76]

Nevertheless, the majority of young people still expect and desire to marry at some point in their lives.^[77] So, what we are left with is an institution unmoored from the norms that once sculpted its contours and set the standards of conduct for its participants, but in which the majority of Americans nonetheless still want to participate. Maybe, then, marriage per se is not passé, but rather simply in need of a conceptual reconstitution. Fortunately, Eli J. Finkel, Chin Ming Hui, Kathleen L. Carswell, and Grace M. Larson recently posited one such conceptual reconstitution of marriage, which they dubbed the “suffocation model.”^[78]

III. The New Norm(al)

In the mid-1900s, psychologist Abraham Maslow postulated his now-famous theory of human motivation based on a hierarchy of needs.^[79] This hierarchy includes five categories of human needs—physiological, safety, belonging and love, esteem, and self-actualization needs^[80]—with physiological needs (like hunger, thirst, sleep, etc.) being the most “pre-potent,” and self-actualization needs (like self-expression and personal growth) being the least pre-potent but most fulfilling.^[81]

Finkel et al. argue that the shifts from institutional to companionate to individualistic, or “self-expressive,” marriage that Americans have experienced over the last two hundred years or so has paralleled social and cultural developments that have facilitated easier lower-order need fulfillment.^[82] “Institutional marriage was the predominant form in rural America prior to the industrial revolution . . . . Because the family was essential for survival,” i.e., for satisfaction of physiological and safety needs, “spouses were expected to sacrifice their own happiness, if necessary, for the good of the union.”^[83] Following the industrial revolution, as individuals became better at outsourcing or self-satisfying lower-order need fulfillment,^[84] “the companionate, breadwinner-homemaker model of marriage emerged as the cultural ideal.”^[85] Because the lower-order physiological and safety needs were more readily satisfied, the cultural conception of marriage became more “heavily oriented toward” satisfaction of middle-order “belonging and love needs.”^[86] Finally, beginning in the 1960s and continuing through to the present, “American culture shifted toward an ethic of expressive individualism”^[87] by which higher-order “self-development and personal fulfillment”^[88] self-actualization needs became the primary focus and goal of American marriages.^[89] Consequently, the companionate-marriage paradigm was replaced by the “individualistic marriage.”^[90] Marriage became, and is now, commonly a means by which its participants achieve self-discovery, growth, self-expression, prestige, and esteem, among other things.^[91]

As Finkel et al. point out, this understandably raises some new and difficult challenges to marital success.^[92] Most importantly for my purposes, whereas satisfaction of lower-order physiological or safety needs could be accomplished by any number of people,^[93] the satisfaction of higher-order self-actualization needs “require[s], to a much greater extent, that the partner understands one’s distinctive qualities.”^[94] That is, self-actualization is necessarily a wholly idiosyncratic pursuit.^[95] This has at least two consequences: First, the individual seeking self-actualization is required to invest much more psychological and cognitive effort to acquire the necessary self-insight to know what that self-actualization looks like, or how it could be accomplished;^[96] and second, support and facilitation of one’s partner’s self-actualization “requires[s] [one to have] a deep emotional bond and profound insight into the partner’s core essence.”^[97]

If this theory is true, then it is no wonder that the American divorce rate has stabilized at about forty-five percent.^[98] Considering how arduous “the processes through which individuals achieve personal growth and self-actualization” can be^[99] and the clarity of self-insight required to know what those processes are, cultivating the kind of marriage through which both spouses can have such complex higher-order needs fulfilled and can assist the other with his or her own higher-order need fulfillment would “require[] considerable communication and responsiveness over a sustained period of time.”^[100]

Admittedly, this theory of the new marital norm(al) is not without its critics,^[101] one of whom, Paul R. Amato, points out that although the self-expressive or individualistic model of marriage “make[s] an impressive theoretical-empirical package,”^[102] the individualistic marriage model is not the only one in use today out of the three (i.e., institutional, companionate, and individualistic).^[103] “Although the era of institutional marriage is long past, some current marriages continue to draw on institutional elements.”^[104] For example, this may be the case in highly religious marriages,^[105] or perhaps in marriages in Amish communities.^[106] Moreover, elements of the companionate marriage model are also common in many contemporary marriages. “[M]any contemporary, egalitarian, dual-earner couples continue to embrace the companionate model of cooperative teamwork,”^[107] and while they may incorporate some of the self-actualization goals of the individualistic model of marriage, the marriage itself remains a good in itself to be sought in equal or greater measure.^[108]

Ultimately, Amato clarifies the arguments underlying the theory of the American marital-model shifts, and points out that rather than there being three mutually exclusive models of marriage, “[t]he three forms of marriage can be seen as broad cultural scripts for marriage at the societal level and, at the same time, internalized representations of marriage (or marriage schemas) at the individual level.”^[109] Any particular marriage between two people could incorporate elements of each of the three models, depending on the values and goals of the parties to it.^[110]

However, whether contemporary marriages are guided exclusively by the individualistic marriage model or by aspects of all three marriage models, the result is that these changes to the meaning and purpose of marriage over time have increased the complexity of the meaning and purpose of marriage for each individual.^[111] Considering the new and diverse nature of marriage in the United States,^[112] it is reasonable to conclude that the discussion of the meaning of marriage can no longer be had at the societal level,^[113] but should rather be between and specific to each wedded-couple-to-be.

IV. Enter: The Prenup

Prenuptial agreements get a bum rap,^[114] perhaps because they seem to be in poor taste.^[115] They appear to the non-instigating partner as conditions on what ideally should be unconditional love, as pessimistic preparations for divorce,^[116] or as communications in themselves of some subversive intent, feeling of distrust, or unwillingness to share with and care for the other.^[117] This effect is termed “negative signaling.”^[118] “The perceived need for the prenuptial agreement suggests that the couple will have problems with issues of family interference, trust, sharing, power or intimacy . . . because the effect of the prenuptial agreement is to render the stronger partner invulnerable to the weaker partner” should the marriage ultimately end in divorce.^[119]

Moreover, most people, if the idea of a prenuptial agreement occurs to them at all before their marriage, probably do not think that they will need one.^[120] The optimism or representativeness bias experienced by never-married adults is really quite astonishing.^[121] One study found that “[w]hile both law students and the general population correctly estimated the national divorce rate to be approximately 50%,” when it came to estimating their own marital prospects, “50% of the general population and almost 25% of the law student population estimated that their chance of divorce was 0%.”^[122] The never-married young adults that were the subjects of these studies “apparently considered themselves to be unrepresentative of the population of people who marry, and therefore systematically concluded that the statistical likelihood of divorce and of its various effects did not apply to them personally.”^[123]

Together, these perceptions about the emotional implications of prenups (“negative signaling”)^[124] and individuals’ optimism or representativeness biases help to explain why prenuptial agreements are in such scarce use in the United States.^[125] But prenups offer more than merely an instrument by which a spouse can protect his or her property upon dissolution.^[126] Prenuptial agreements can locate the discussion of the very meaning of marital partnership on a per-couple basis, provide a palatable context for consideration of the un-romantic things, and even help foster marital health and longevity.

A. First, What Is a Prenup?

Prenuptial agreements are contracts entered by couples in anticipation of marriage.^[127] While initially treated unfavorably by the courts,^[128] the tide began to change with the Florida Supreme Court case Posner v. Posner in 1970.^[129] Now, “[t]he contemporary view is that premarital agreements that settle questions of property and support rights upon divorce promote and facilitate marriage rather than encourage divorce.”^[130] The view of prenuptial agreements as being concordant with public policy and individual interests^[131] has even led to the enactment of the Uniform Premarital Agreement Act in order “to provide a sense of confidence in the enforceability of the agreements that are reached by the parties” entering a marriage.^[132] As family law scholar Linda Ravdin so deftly put it:

Because couples need not marry, and may choose not to do so if marrying puts all their assets and income-earning potential at risk, courts and legislatures have recognized that allowing such persons to enter into a contractual arrangement that reduces their exposure to spousal claims, and predetermines their rights and obligations at the end of the marriage, encourages parties, especially those who have been married previously, to take a chance on love.^[133]

However, premarital agreements are not just for persons coming into a marriage already holding substantial assets, or persons embarking on second (or third, fourth, etc.) marriages, but can benefit virtually any couple contemplating marriage. “[A] premarital agreement is appropriate for anyone with property, debt, a degree, a certificate or license, an established career, a business or professional practice, a creative product, expectations of inheritance or other receipt of assets, past matrimonial experience, or children.”^[134] “Such an agreement also should be considered by individuals who must give up some rights upon marriage, such as a change in lifestyle or location.”^[135] Between these two statements, is anyone left out? I doubt it. But let us say, for argument’s sake, that you are quite certain that you will not end up divorced,^[136] you have no accumulated wealth, have no particular attachment to your place of residence, own no property, and otherwise generally think you have nothing for which you would need the protection of a prenuptial agreement. Is it still worth it?

B. The Marriage Itself as a Good Worth Protecting

Let us first return to the self-actualization theory of marriage discussed above.^[137] Self-actualization is a rather opaque concept.^[138] Finkel et al. explain that from the perspective of their model of marriage, self-actualization is a state of full human functionality,^[139] achieved through the satisfaction of needs like “veridical (nondefensive) self-assessment, spontaneity, autonomy, personal growth, and self-expression.”^[140] From this perspective, marriage has now become a vehicle by which its participants can ascend closer to the ideal version of themselves qua selves.^[141] Something about your marriage enables you to become more yourself than you are without the marriage.^[142] And even for couples that might prefer marital ordering based on the more traditional companionate or institutional models, the more liberated those couples are from constraints that would necessitate the use of either model, the more likely it is that those models are chosen because they are more concordant with the couple’s view of themselves qua selves.^[143]

This is a lot to expect from a marriage,^[144] but where it is successful there is good reason to believe that it can “strengthen the link between marital quality and personal well-being.”^[145] “For example, the extent to which one’s partner helps to facilitate one’s growth regarding one’s ideal-self goals predicts not only growth toward the fulfillment of those goals over time, but also elevated relationship quality.”^[146] The implication of this is that to the extent that marriage helps each of its participants self-actualize, in whatever way this is accomplished, the marriage itself becomes a good to be protected. We can imagine it, functionally, this way: if high marital quality (with respect to satisfaction of self-actualization needs) yields greater personal well-being, then high marital quality has instrumental value, and therefore is a good^[147] (improvement in marital quality increases this instrumental value).^[148] That is, your (future) marriage is an asset. Now you have something to protect, and a prenuptial agreement can help.

C. So You Have Something to Lose

How can a prenuptial agreement protect a future marriage? At least in two ways: first, by helping the married-couple-to-be orient themselves within their future marriage and with regard to their marital expectations;^[149] and second, by including provisions that make divorce more costly than it is made by the state.^[150] I will discuss both of these methods in turn.

There are probably about as many ways to order a marriage, or to understand marriage, as there are people married or planning to marry.^[151] For example, there are starter marriages,^[152] by which two people can test out or try on marriage, sometimes by a formal contract and with a set number of years, to see if it is right for them.^[153] There are companionship marriages, in which, much like it sounds, a person marries simply to gain a long-term companion.^[154] There are “living apart together” marriages^[155] and commuter marriages;^[156] there are parenting marriages,^[157] safety marriages,^[158] capstone and cornerstone marriages,^[159] and open marriages.^[160] The list goes on.^[161] And the fact that most millennials still desire and expect to marry implies that these people harbor some expectation(s) about what their marriages would be and the benefits their marriages would yield.^[162] As one scholar writes:

Marriage, to those involved in one, can mean a legal tie, a symbol of commitment, a privileged sexual affiliation, a relationship of hierarchy and subordination, a means of self-fulfillment, a social construct, a cultural phenomenon, a religious mandate, an economic relationship, the preferred unit for reproduction, a way to ensure against poverty and dependence on the state, a way out of the birth family, the realization of a romantic ideal, a natural or divine connection, a commitment to traditional notions of morality, a desired status that communicates one’s sexual desirability to the world, or a purely contractual relationship in which each term is based on bargaining.^[163]

Yet, insofar as any such expectations with respect to the marriage remain internal, unexpressed ideations, they cannot contribute to, and could even frustrate, formation and achievement of dyadic goals. And because marriage is by definition dyadic, unexpressed expectations could be the very cause of ultimate marital dissolution.^[164]

D. Prenups for Communicating Expectations and Ordering Behavior

In addition to the optimism or representativeness biases we experience, studies show that we also suffer from an “egocentric bias.”^[165] Egocentric bias is, essentially, the tendency to assume that others hold the same perspective on something as we do.^[166] “[P]eople spontaneously attribute their inner states of mind to others whether it be knowledge, emotion, or sensation.”^[167] This bias can cause us to “make frequent and predictable errors in the way we assess the conceptual perspective of other persons.”^[168]

One way to forestall the deleterious effects of inconsonant expectations is insight^[169]—insight into oneself and insight into one’s partner, and the expectations each person holds as to which higher-order need(s) the marriage will satisfy and how.^[170] We gain insight primarily through communication.^[171] This is the first way discussion and negotiation of a prenuptial agreement can help you protect your future marriage.

Discussion of a prenup can help bring to the surface each partner’s expectations about what he or she wants their marriage to look like, how he or she wants it to function, and can provide an opportunity to identify and reconcile any such expectations which turn out to be inconsistent or incompatible.^[172] This is because, in the first instance, the prenup forces you to imagine your marriage as you see it in the future.^[173] Thinking about the future is “an indispensable psychological tool” that “acts as a virtual platform on which behavioral selection can be appraised, adjusted and optimized.”^[174] That is, we use visualization of the future and our future selves to help us guide our decision-making processes and to help us craft our short- and long-term goals.^[175] Moreover, when we think about our more distant futures, we tend to assume the third-person perspective within that visualization.^[176] Studies show that assuming a third-person perspective can to some degree mitigate the egocentric bias we normally experience.^[177] This new perspective allows us to assume a state of “cognitive flexibility” that better facilitates our ability to hypothesize and understand others’ perspectives and states of mind.^[178]

In sum, because discussing and negotiating a prenuptial agreement forces a couple to imagine their future marriage, it helps them to clarify and view more objectively their thoughts and beliefs about what that marriage should look like. This provides both partners with an opportunity to gain (at least some of) the kind of self-insight necessary for knowing how they each expect or hope their marriage will satisfy their respective self-actualization needs. Once the partners come to a shared understanding of their own and the other’s expectations for their future marriage, they have the opportunity to begin ordering their behavior according to where those expectations converge or diverge.^[179] They can use the contract to set out specific marital goals, assign duties or obligations, identify desired or disruptive behaviors, and even clarify and hold them to the ideals to which they aspire.^[180] Ultimately, “[t]he contracting process . . . helps the parties articulate and clarify their goals and expectations. . . . [because] [i]t stimulates straightforward, open communication, as each partner reveals his or her needs, hopes, goals, and plans.”^[181]

In addition, discussion and negotiation of a prenup can improve a couple’s communication and problem-solving skills.^[182] Traditionally, the prenuptial agreement drafting process has been treated as an adversarial process,^[183] and considering the negative signaling that suggestion of a prenup can entail,^[184] this is not surprising. However, it need not be an adversarial process, and can actually be a collaborative and constructive process.^[185] “Prenuptial agreements force an engaged couple to discuss thoroughly and honestly issues such as money and property, topics that some couples might avoid.”^[186] That is, the requirements that the courts have placed on prenups in order to be adjudged voluntary and fair necessitate a high degree of frankness.^[187] For example, parties to a prenuptial agreement must have achieved full and fair disclosure of any relevant financial information,^[188] including, among other things, information about closely held business investments,^[189] interests in trusts,^[190] reasonably foreseeable significant changes to their financial circumstances,^[191] interests in or possession of “hard-to-value” assets,^[192] and debt.^[193] “These discussions can help build a better understanding of [a couple’s] assets and financial intentions, which can increase the chances of a peaceful and successful marriage.”^[194] These discussions can also establish a high baseline of general openness, and “[o]nce open communication has been established as a norm, a couple is more likely to share feelings and concerns as situations and attitudes change.”^[195]

As one scholar explains, “marital commitment necessarily involves a range of subsidiary commitments—commitments to communication, truthfulness, vulnerability, acceptance, attentiveness and understanding, respect, equality, and exclusivity.”^[196] As such, cooperative and collaborative consideration of what a particular couple’s marriage means to them, and how they would like it to be structured and to operate, ought to begin before the marriage does. That is, the “communication, truthfulness, vulnerability, acceptance, attentiveness and understanding, respect, equality, and exclusivity” that make up the subsidiary commitments to the regnant marital commitment ought to begin at least as soon as the goal of marital commitment materializes (in an ideational sense) for the couple. “An exploration of the values of economic vs. personal goals can bring potential philosophical differences into the open and may help to resolve them before they become a source of conflict.”^[197]

In an era in which the success of many marriages may be dependent upon each spouse’s ability to support or even facilitate the self-actualization of the other, necessitating both partners’ deep insight into themselves and the other, this kind of communication is absolutely vital.^[198] Therefore, “a marriage contract is an essential prerequisite to preserving [romance], since romance has a way of evaporating when misunderstandings about roles and responsibilities arise.”^[199]

E. Prenups for Making Divorce More Costly (or Less Damaging)

The marriage-bolstering benefits derived from negotiation of a prenup in terms of self- and partner-insight, goal-creation, behavior regulation, and early resolution of critical life questions are arguably sufficient in themselves to justify a couple in seeking to negotiate a prenup.^[200] However, these are not the only ways in which prenups offer couples the ability to secure greater protections for their marriages. Couples can also add provisions to their prenups that make it more difficult or costly to get a divorce.^[201]

Elizabeth S. Scott suggests using what she calls “precommitment strategies” to compel continued investment in one’s marriage.^[202] “Precommitment strategies are useful when an individual seeks to pursue a declared long-term preference,” i.e., the marriage, “but fears that she may make future choices based on short-term preferences that are inconsistent with this goal,” e.g., preferring the ease of divorce over the effort of marriage counseling.^[203] These strategies, she explains, are “a recognition of weak will,”^[204] and are directed toward “manipulating, ex ante, the costs, benefits, and availability of different options” in order to “reinforce self-control.”^[205]

There are several such provisions that couples may try, but not all will succeed. As an example, a couple could incorporate into their prenup an all out prohibition on divorce.^[206] However, if a court finds that such a prohibition is contrary to the public policy underlying the default no-fault, unilateral availability of divorce, then the court may invalidate the agreement.^[207] Or couples could agree on divorce penalty terms—should one spouse seek divorce, that spouse will owe the other payment of some previously determined sum in addition to the other property divisions laid out in the prenup.^[208] However, damages or payment requirements over and above provisions for alimony or child support may be treated by the court as a type of liquidated damages, thereby rendering the agreement, or that part of the agreement, unenforceable.^[209]

The reason couples who have entered prenuptial agreements attempt to have those agreements declared invalid is that, for the party contesting the agreement, the cost of the agreement being followed is greater than the cost of litigating its validity.^[210] For example, the cost of one spouse’s having waived her right to alimony, upon divorce, is greater than the cost of invalidating the agreement that waived such right if the alimony she could have received would be greater than the costs of litigation. Or, another example might be waiver of the availability of no-fault divorce. If one spouse has waived that availability, but finds herself miserable in her marriage, the cost of her misery may be outweighed by the potential benefit of avoiding it by having the agreement declared invalid by a court. Thus, the trick when crafting provisions to increase the costs of divorce lies in the ability to create pre-divorce requirements that will be less burdensome to follow than they would be to contest, and which would at the same time compel sufficient effort by the parties as would give the marriage some chance of rehabilitation and success.

Examples of such provisions that may succeed include certain monetary sanctions,^[211] a pre-divorce delay,^[212] mandatory pre-divorce marriage counseling,^[213] or a pre-divorce attempt at alternative dispute resolution like mediation or collaborative dissolution.^[214] With respect to the first, couples could create trusts which reserve some portion of the couple’s marital property to their children.^[215] A mechanism such as this would decrease the economic benefit of divorce by reducing the amount of property either partner may receive upon dissolution of the marriage.^[216]

The second is not novel. Many states have or have had requirements respecting how long a party who has filed for divorce must wait before the divorce is granted.^[217] A prenuptial agreement provision to that effect might require a waiting period between initial separation of a couple and the ability of one or the other to file for divorce.^[218] The utility of this provision lies in the fact that it can prevent or protect against rash or impulsive decisions to seek divorce when a marriage gets hairy.^[219] The mandatory waiting period could act as a cooling-off period at times when marital problems are at their peak and partners are most emotional and irrational, affording partners the opportunity to evaluate whether their long-term dyadic goals have changed to the extent that divorce is in fact the best option.^[220]

The third option would require marriage counseling prior to either partner being able to file for divorce.^[221] One benefit of this provision, like the waiting period provision, is in its tendency to delay rash or impulsive choices with respect to dissolution, and to give the couple ample time and opportunity to attempt reconciliation.^[222] Studies have also shown that participation in counseling or education programs designed to teach “empathic listening, conflict resolution, and forgiveness” increased the participants’ marital satisfaction.^[223] So, a provision requiring mandatory pre-divorce marriage counseling, particularly when coupled with a pre-divorce waiting period, has the potential to be an efficacious precommitment strategy for couples.

Finally, provisions requiring use of alternative dispute resolution options like mediation or collaborative dissolution may be appealing.^[224] While these options typically are used as alternatives to judicial divorce processes,^[225] and therefore have less to do with promoting marital longevity than do the other precommitment strategies, they may be worth considering as options for avoiding the acrimony and hostility associated with traditional adversarial divorce proceedings.^[226] In a way, incorporating provisions for collaborative dissolution memorializes a couple’s intention to preserve their respect and consideration for the well-being of the other even when they have determined their marriage to be untenable.^[227] For example, “[t]he collaborative [dissolution] process seeks to serve the highest good, and find the best outcome, for both parties.”^[228] The collaborative dissolution process, like the prenuptial agreement negotiation process,^[229] encourages full disclosure of all relevant issues and information, negotiation, and mutual respect, so that even though the marriage may no longer be salvageable, the collaborative dissolution process may help to preserve the friendship or esteem between the partners.^[230]

Mediation is similar to, but arguably not quite as constructive or cooperative as collaborative dissolution. In the collaborative process, each partner has a lawyer to advocate for him or her who has, ideally, come to a thorough understanding of her client’s story and goals, and the lawyers and partners work together to find common ground and settlement terms.^[231] Mediation, on the other hand, involves the two partners to a dissolving marriage and one neutral third party who, rather than advocate for either partner, attempts to “facilitate[] discussion and points of resolution” between the partners.^[232]

The choice between collaborative dissolution and divorce mediation may depend on several considerations, including possible power imbalances between the partners, availability of the partners, and financial resources.^[233] For example, if a couple, when discussing their prenuptial agreement provisions, recognizes that one or the other partner will bear more of the breadwinning responsibilities while the other will bear more of the homemaking responsibilities, it may be prudent to provide in the prenuptial agreement that the services of both collaborative attorneys will be paid for by the breadwinning spouse.^[234] Or, if a couple has “a relationship of hierarchy and subordination”^[235] such that they know in advance that one partner or the other may suffer a power disadvantage during negotiations, the collaborative process’s use of individual representation for each partner may help to equalize that power imbalance.^[236]

F. Getting There

Unfortunately, because we humans are emotional creatures as well as rational ones,^[237] the theoretical recognition of the benefits of prenuptial agreements may not be enough to overcome the negative signaling their suggestion can entail.^[238] Moreover, some of the negative signaling caused by suggestion of a prenup may be accurate to the emotional situation of the initiator.^[239] For these reasons, it is important to go about suggesting, discussing, and negotiating a prenuptial agreement the right way.

First, bring it up early.^[240] As we know, prenups can be emotionally-laden documents.^[241] Broaching the subject early, in the same way you would other ideas about what you want out of a relationship (like children, or where you want to settle down), can make it a more objective conversation.^[242] Moreover, the earlier the conversation happens, the less likely the emotions it evokes are to get tangled up with the stress and anticipation of wedding planning.^[243] Not to mention, if you do wait until the eve of your big day to have this talk, you run a greater risk of having the agreement declared invalid should it be litigated later on.^[244] Having the conversation at the right time, when both partners are in a positive frame of mind, and in the right place, somewhere private and comfortable for discussion of serious subjects, can help frame the conversation as less emotional and more practical.^[245]

Be prepared for an emotional reaction, and meet it with empathy.^[246] Try to understand your partner’s feelings about the suggestion, if he or she has any, and be clear about your own motivations for wanting a prenup.^[247] Moreover, be aware that there is every possibility that your partner’s concern that the suggestion of a prenup signals your distrust is accurate.^[248] If this is the case, honest and open expression of your own fears can also lead to productive discussion and problem-solving. And you have at your disposal the ability to off-set your partner’s distaste for provisions for keeping property separate and the like by suggesting that you would also be interested in precommitment provisions that make divorce more difficult, or encourage greater pre-divorce rehabilitation efforts.^[249] Because precommitment provisions are all about bolstering the marital commitment and preventing impulsive decisions when the marriage is in distress, your willingness to incorporate them could communicate your dedication to the marriage.^[250] This may make acceptance of provisions that seem to make divorce less costly more palatable.^[251]

Finally, let it be a discussion, not a demand.^[252] “[H]uman emotion fuels decision-making.”^[253] Demanding that your partner sign a prenup may make him feel threatened and defensive, escalating the emotional reaction your partner has to the suggestion.^[254] A big part of the benefit of the prenup discussion and negotiation comes from the opportunity to gain insight about your own and your partner’s long-term goals, values, and needs.^[255] For this reason, the initial discussion of a prenuptial agreement should be an exploration of each other’s thoughts, feelings, concerns, and fears.^[256] It need not be adversarial, but rather can and should be a collaborative and productive process if done correctly.^[257]

In fact, some scholars have suggested that the same collaborative law process that can be used for dissolution can be used for negotiation and drafting of prenuptial agreements.^[258] In the traditional process for negotiating a prenuptial agreement, “there is little focus on determining or delineating any joint goals or objectives of the parties.”^[259] The partner who desires the prenup hires an attorney who drafts up an agreement representing the proverbial best deal for her client, containing provisions which may or may not have been discussed by the couple.^[260] Then this draft is passed along to the other partner, “roll[ing] into the middle of pre-marital festivities like a live hand grenade.”^[261]

In the collaborative process for negotiating and drafting prenups, on the other hand, there may only be one attorney representing both partners,^[262] or each partner may have a separate attorney,^[263] but all four of them (the partners and their attorneys) meet together to brainstorm terms and considerations.^[264] In either case, the focus of the attorney representation is to “guide [the spouses] through the process of outlining their joint goals and expectations”^[265] in order to craft a “mutually developed blueprint for the marriage.”^[266]

Regardless of whether you decide to go the traditional prenup negotiation route or the collaborative law route, your discussions of the prenuptial agreement with your partner ought to be collaborative and mutually contributive, a team effort.^[267] The idea is that you are planning your partnership—together.^[268] You are identifying potential problems, fears, or logistical issues together.^[269] You are building problem-solving and conflict-resolution skills together.^[270] If brides-to-be can spend an average of thirty-six days planning the details of a wedding that only lasts one day,^[271] it makes little sense to dedicate little, if any, time to planning the details of the marriage that follows.

V. Now That That’s Sorted, Will It Stick?^[272]

Historically, courts have treated prenups with considerable skepticism and disdain, construing them as encouraging or being in contemplation of divorce and therefore against public policy.^[273] Fortunately, the tides are turning with respect to judicial and legislative treatment of prenuptial agreements.^[274] In 1983, the Uniform Law Commission promulgated the Uniform Premarital Agreement Act in an effort to encourage “uniform legislation [among the states] conforming to modern social policy which provides both certainty and sufficient flexibility to accommodate different circumstances” in the treatment of premarital agreements, defining them as “agreement[s] between prospective spouses made in contemplation of marriage,” not in contemplation of divorce.^[275] Texas enacted a version of the Uniform Premarital Agreement Act in 1997.^[276] However, despite this shift in favor of the enforceability of prenups, there are still a couple enforcement issues to consider.

A. “Love It or Leave It:”^[277] Enforcement in Intact Marriages

Generally speaking, a prenuptial agreement cannot be judicially enforced during the term of an intact marriage.^[278] Professor Saul Levmore dubs this the “Love-It-Or-Leave-It” rule: the exclusive legal remedy available to couples for breach of the terms of a prenuptial agreement is only available in conjunction with dissolution of the marriage.^[279] And in all likelihood, most couples would be disinclined to use legal enforcement of behavior-oriented prenuptial agreement terms during an intact marriage even if such a remedy were available.^[280] “The law’s tools are simply too crude to adjust conflicts in intimate ongoing relationships that are shaped by subtle and delicate dynamics.”^[281] Verifiability and liability-valuation problems would increase risk of error in a court’s assessment of the circumstances, breach, and damages.^[282]

While the potential nonjusticiability of disputes in ongoing marriages may be of no consequence with respect to prenuptial agreement terms dealing with property division, alimony, or the like,^[283] it may be of concern when it comes to enforcing terms that regulate behavior or the distribution of responsibilities throughout the course of the marriage.^[284] After all, the idea here is that the prenuptial agreement has been used (at least in part) for the express purpose of ordering the marriage, clarifying and planning the partners’ individual and dyadic goals, and governing the partners’ marital behaviors.^[285]

However, there are tenable arguments that judicial intervention would be largely unnecessary to enforce such terms,^[286] and that the availability of judicial remedies would likely yield little benefit to couples in such cases.^[287] Internalized social and relational norms will often serve to bolster the commitments each partner has made to the other.^[288] With respect to social norms, both the tangible and intangible symbolic importance of the marital commitment is likely to provide, to some degree, a buttress against short-term self-interested behaviors that are in conflict with the agreements each made to the other.^[289] Moreover, the power of social norms regarding promise-keeping can provide additional support to the maintenance of behavioral bargains.^[290] “Internalized norms of promise-keeping allow some couples to make binding agreements even in the absence of external sanctions.”^[291] Even the bare existence of a contract memorializing a couple’s behavioral agreements “in ‘black and white’” can help the couple maintain those agreements.^[292]

Regarding relational norms, cooperative problem-solving strategies tend to be self-reinforcing the longer they are employed.^[293] This suggests that the earlier a couple begins to establish relational norms of cooperation and reciprocity, the more likely those norms are to persist throughout the marriage.^[294] “If a contract has established a mechanism for resolving differences at an early stage, many disputes can be resolved before they grow to proportions that seriously threaten the relationship.”^[295]

Finally, as explained above, any precommitment provisions incorporated in the prenup serve to boost each partner’s incentive to act cooperatively during the marriage. This is because such provisions make the terminal resolution (i.e., divorce) to recurrent noncooperative behavior more costly than it would be under the default divorce laws.^[296] Therefore, the additional costs to dissolution serve to discourage noncooperative behaviors that serve only short-term preferences and are not in accordance with the long-term goals of the couple.^[297]

Ultimately, couples should not let the potential nonjusticiability of behavior-regulating prenup terms discourage or dissuade them from obtaining a prenuptial agreement that includes such terms. The Uniform Premarital Agreement Act and its Texas iteration provide that couples “may contract with respect to” any terms regarding “personal rights and obligations, not in violation of public policy” or criminal statutes.^[298] And as we have seen, taking the opportunity to discuss and negotiate such terms for a prenuptial agreement can have substantial benefits beyond their tendency to restrict behavior.^[299]

B. Enforcement upon Dissolution

Upon dissolution, however, judicial remedies become available, and Texas courts generally treat prenuptial agreements as presumptively enforceable.^[300] When a party does run into enforceability problems upon dissolution, it often has to do with circumstances surrounding the execution of the agreement that speak to its having been involuntary or unconscionable.^[301] The burden for proving that an agreement was entered involuntarily or was unconscionable will be on the party attempting to have it declared invalid.^[302] In considering whether an agreement was voluntarily entered, courts may consider such things as “duress, lack of capacity, fraud, and undue influence, along with the parties’ relative bargaining power and knowledge regarding the meaning and effect of the agreement.”^[303] Considerations of unconscionability will include issues such as whether the contesting party was “provided a fair and reasonable disclosure” of financial information, or whether a partner “voluntarily and expressly waive[d]” her right to such disclosure.^[304] Also, certain provisions may be declared invalid if they appear to be against public policy, such as when they tend to encourage divorce.^[305] However, invalid provisions are often severable, even without a severability clause.^[306] Typically, only “[i]f the whole or primary purpose of the agreement is found invalid . . . [will] the entire agreement . . . be held invalid.”^[307]

When discussing and planning your prenuptial agreement, it is certainly prudent to keep these enforceability considerations in mind, even though you plan to have representation when you finally do execute the agreement.^[308] However, if you are using your prenuptial agreement in the way that I have described, i.e., as a means to explore the expectations, goals, fears, needs, and hopes of your own and your partner, and have taken my advice about getting the prenup show on the road early, then you may, by default, avoid having to worry about many of the voluntariness and conscionability concerns.^[309] If you are using the prenuptial agreement in the way that I have suggested it should be used, you will be discussing and executing it well in advance of your wedding,^[310] in an honest and forthright manner,^[311] while open to negotiation and reciprocity,^[312] and you will come to mutual understanding and agreement about its terms.^[313] All of this is to say, make the most out of your prenuptial agreement, and you should be able to feel secure about its validity as well. And in any case, you will likely (and ought to) have legal representation for its drafting and execution,^[314] and your attorney should shoulder some of the responsibility for ensuring that it is executed fairly.^[315]

VI. Conclusion

For many, the suggestion of a prenup is upsetting because it seems to carry with it implications of distrust and an unwillingness to share. And while in some cases this assumption may be valid, to the extent that it dissuades a couple from seeking a prenup it will rob a couple of a unique opportunity. A prenup’s usefulness is not limited to shielding one’s property from one’s partner. It is not of necessity an instrument drafted in contemplation of divorce. It can, and should, be an instrument drafted in contemplation of marriage—more specifically, in contemplation of each couple’s idiosyncratic, one-of-a-kind marriage.

The fact of the matter is, for better or worse, marriage is not what it used to be. It matters, perhaps more so now than ever before, who you marry and what you each want to accomplish in and by your marriage. It matters who you are, who you want to be, and how you want to get there. A prenup can help.

Certainly, I am not arguing that prenups are a panacea for all American marital woes, or that all the plans you develop during your negotiation of a prenup will succeed. But in an era in which divorce is common, marriage is by some seen as transitory, and the law does nothing to discourage or prevent improvident marriages, the adage “know thyself” takes on new importance: because of the breakdown of social and cultural marital norms, no one is left to do such knowing for you. You (and your partner) are left to your own devices to shape your marriage, and much of this shaping, both before and during the marriage, will be based on who you are, who you are becoming, and how you will get there. Because of this idiosyncratic character of modern marriage and the chances of its failure, rational entrants into marriage ought to take advantage of every opportunity to know themselves and their partners, and amongst such opportunities, the discussion and negotiation of a prenup is particularly potent. If it were not so, perhaps prenups would not be as vigorously avoided and viscerally reacted to as they are.

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1. Obergefell v. Hodges, 135 S. Ct. 2584, 2596, 2599 (2015).

2. See, e.g., June Carbone & Naomi Cahn, Red v. Blue Marriage, in Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First-Century Families 9, 9–12 (Marsha Garrison & Elizabeth S. Scott eds., 2012); Julissa Cruz, Nat’l Ctr. for Family & Marriage Research, Marriage: More Than a Century of Change 1 (2013), https://www.bgsu.edu/content/dam/BGSU/college-of-arts-and-sciences/NCFMR/documents/FP/FP-13-13.pdf [https://perma.cc/2ZBD-FVP9].

3. Obergefell, 135 S. Ct. at 2604–05.

4. See, e.g., Eric Klinenberg, Going Solo: The Extraordinary Rise and Surprising Appeal of Living Alone 3–5 (2012); Mary Lyndon Shanley, The State of Marriage and the State in Marriage: What Must Be Done, in Marriage Proposals: Questioning a Legal Status 188, 188–90 (Anita Bernstein ed., 2006); Alison Aughinbaug et al., Marriage and Divorce: Patterns by Gender, Race, and Educational Attainment, Monthly Lab. Rev., Oct. 2013, at 1; Elizabeth Hodges, Will You “Contractually” Marry Me?, 23 J. Am. Acad. Matrim. Law. 385, 386–88 (2010); Shelly Lundberg et al., Family Inequality: Diverging Patterns in Marriage, Cohabitation, and Childbearing, J. Econ. Persp., Spring 2016, at 79, 81–88; Jamie M. Lewis & Rose M. Kreider, U.S. Census Bureau, Remarriage in the United States 8 (2015), https://www.census.gov/content/dam/Census/library/publications/2015/acs/acs-30.pdf [https://perma.cc/VWY6-RLZG]; Kasey J. Eickmeyer, Generation X and Millennials: Attitudes toward Marriage & Divorce, Nat’l Ctr. for Fam. & Marriage Res. (2015), https://www.bgsu.edu/content/dam/BGSU/college-of-arts-and-sciences/NCFMR/documents/FP/eickmeyer-gen-x-millennials-fp-15-12.pdf [https://perma.cc/QBN5-JZQE]; Kim Renfro, Millennials Have Figured Out an Approach to Relationships that’s Protecting Them from Divorce, Bus. Insider India (Sept. 12, 2016), http://www.businessinsider.in/Millennials-have-figured-out-an-approach-to-relationships-thats-protecting-them-from-divorce/articleshow/54298937.cms [https://perma.cc/CJ5M-SECY]; Renee Stepler, Led by Baby Boomers, Divorce Rates Climb for America’s 50+ Population, Pew Res. Ctr. (Mar. 9, 2017) [hereinafter Stepler, Baby Boomers], http://www.pewresearch.org/fact-tank/2017/03/09/led-by-baby-boomers-divorce-rates-climb-for-americas-50-population/ [https://perma.cc/D8MX-8ZHR]; Renee Stepler, Number of U.S. Adults Cohabiting with a Partner Continues to Rise, Especially Among Those 50 and Older, Pew Res. Ctr. (Apr. 6, 2017) [hereinafter Stepler, Cohabitating], http://www.pewresearch.org/fact-tank/2017/04/06/number-of-u-s-adults-cohabiting-with-a-partner-continues-to-rise-especially-among-those-50-and-older/ [https://perma.cc/63ZN-CNTL].

5. See Cruz, supra note 3, fig.1.

6. See Carbone & Cahn, supra note 3, at 16.

7. See Stepler, Baby Boomers, supra note 5 (stating that “[a]mong U.S. adults ages 50 and older, the divorce rate has roughly doubled since the 1990s”).

8. John Fleming, Gallup Analysis: Millennials, Marriage and Family, Gallup (May 19, 2016), http://news.gallup.com/poll/191462/gallup-analysis-millennials-marriage-family.aspx [https://perma.cc/HQ9Z-ZLQ7].

9. See Renfro, supra note 5.

10. Glenn Stanton, What Is the Actual US Divorce Rate and Risk?, Pub. Discourse (Dec. 16, 2015), http://www.thepublicdiscourse.com/2015/12/15983/ [https://perma.cc/B22N-UBY7?type=image].

11. See Andrew J. Cherlin, In the Season of Marriage, a Question. Why Bother?, N.Y. Times (Apr. 27, 2013), http://www.nytimes.com/2013/04/28/opinion/sunday/why-do-people-still-bother-to-marry.html?pagewanted=all [https://perma.cc/784K-GCN4].

12. See Stepler, Cohabitating, supra note 5.

13. See Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. Marriage & Fam. 848, 849 (2004).

14. Id. at 848–51.

15. See Shelly Lundberg & Robert A. Pollak, The Evolving Role of Marriage: 1950–2010, Future Child., Fall 2015, at 29, 34–38.

16. Id. at 35–37; see also Megan M. Sweeney, Two Decades of Family Change: The Shifting Economic Foundations of Marriage, 67 Am. Soc. Rev. 132, 132 (2002) (“Social scientists frequently attribute declines in marriage to increases in women’s economic independence resulting from [women’s market involvement] trends.” (citations omitted)).

17. Lundberg & Pollak, supra note 16, at 35 (“Greater availability of market substitutes for goods and services that used to be produced in the household, as well as household technology . . . . let people outsource functions such as cooking and child care that had traditionally been regarded as central to the family.”).

18. Id. at 37.

19. Cherlin, supra note 14, at 849.

20. See Renata Grossi, The Diminishing Significance of Sexual Intercourse, in Looking for Love in the Legal Discourse of Marriage 39, 49 (2014).

21. Harold P. Southerland, Love for Sale – Sex and the Second American Revolution, 15 Duke J. Gender L. & Pol’y 49, 53–54 (2008). Technically, premarital and extramarital sex were also illegal—most states having laws prohibiting fornication—although these laws were seldom enforced. See Morris Ploscowe, Sex Offenses: The American Legal Context, 25 Law & Contemp. Probs. 217, 219 (Spring 1960) (“Fornication, a common form of premarital sexual activity, is prohibited by a majority of state laws; but it is deemed only a meretricious transaction in many states and is there beyond the reach of police, prosecuting attorneys, and jailers.”).

22. Southerland, supra note 22, at 53.

23. See Grossi, supra note 21, at 46 (“[N]othing asserts a husband’s right to have sex with his wife more than the immunity that he enjoyed against marital rape.”).

24. Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 Law & Soc. Inquiry 941, 941–42 (1995).

25. Susan Barry, Spousal Rape: The Uncommon Law, 66 A.B.A. J. 1088, 1088 (1980).

26. Id.

27. See, e.g., Jennifer McMahon-Howard et al., Criminalizing Spousal Rape: The Diffusion of Legal Reforms, 52 Soc. Persp. 505, 507 (2009).

28. See Anna E. Ward, Sex and the Me Decade: Sex and Dating Advice Literature of the 1970s, Women’s Stud. Q., Fall/Winter 2015, at 120, 120; see also Southerland, supra note 22, at 55 (“The second-wave feminist movement exploded in the 1960s and '70s and aimed at eliminating gender discrimination and giving women the opportunity to participate in life activities on an equal footing with men.”).

29. See Cherlin, supra note 14, at 849; Lundberg & Pollak, supra note 16, at 31.

30. However, as I will mention below, being married appears to correlate with better and more frequent sex. See infra text accompanying note 67.

31. See Andrew J. Cherlin, The Growing Diversity of Two-Parent Families: Challenges for Family Law, in Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First-Century Families, supra note 3, at 287, 299; see also Janet Leach Richards, Mastering Family Law 50 (2009).

32. Richards, supra note 32, at 47–49.

33. Lawrence M. Friedman, High Law and Low Law, 10 F.I.U. L. Rev. 53, 54–55 (2014).

34. Id.

35. Richards, supra note 32, at 50.

36. Marsha Garrison, The Decline of Formal Marriage: Inevitable or Reversible?, 41 Fam. L. Q. 491, 508 (2007). It has been suggested, however, that rather than precipitate the rise in divorce rates, “no-fault divorce statutes simply brought the law into conformity with the actual practice of divorce that had previously occurred despite legal constraints.” Lisa Milot, Restitching the American Marital Quilt: Untangling Marriage from the Nuclear Family, 87 Va. L. Rev. 701, 706 (2001). In either case, it is probably safe to assume that the change in divorce laws did not cause couples to be unhappy such that they desired divorce, but rather simply made the already-desired divorce more accessible. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev. 79, 90–96.

37. Elizabeth S. Scott, Social Norms and the Legal Regulation of Marriage, 86 Va. L. Rev. 1901, 1902–03 (2000).

38. See Cherlin, supra note 14, at 850.

39. Id. at 851.

40. Id.

41. Joseph Chamie & Barry Mirkin, Same-Sex Marriage: A New Social Phenomenon, 37 Population & Dev. Rev. 529, 540 (2011).

42. Such abdication of the traditional view of the purpose of marriage comports with the new, individualized marriage paradigm we are seeing today. See infra text accompanying notes 50–58.

43. Chamie & Mirkin, supra note 42, at 540.

44. Id.

45. Gary J. Gates, Marriage and Family: LGBT Individuals and Same-Sex Couples, Future Child., Fall 2015, at 67, 81.

46. Elizabeth S. Scott & Robert E. Scott, From Contract to Status: Collaboration and the Evolution of Novel Family Relationships, 115 Colum. L. Rev. 293, 297 (2015).

47. Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955, 1986–87 (2010).

48. Scott & Scott, supra note 47, at 297.

49. See, e.g., Carrie Jenkins, What Love Is and What It Could Be 133 (2017); Davis, supra note 48, at 2032; Nina Varsava, Dating Markets and Love Stories: Freedom and Fairness in the Pursuit of Intimacy and Love, Cultural Critique, Winter 2017, at 164, 166.

50. Jeremy Greenwood & Nezih Guner, Social Change: The Sexual Revolution, 51 Int’l Econ. Rev. 893, 915 (2010).

51. See Ron Haskins, Marriage, Parenthood, and Public Policy, Nat’l Aff., Spring 2014, at 55, 55–57.

52. See Paul R. Amato, Tradition, Commitment, and Individualism in American Marriages, 25 Psychol. Inquiry 42, 42 (2014); Cherlin, supra note 14, at 851.

53. See Cherlin, supra note 14, at 853; Marjorie Maguire Shultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 Calif. L. Rev. 204, 250–51 (1982).

54. Cherlin, supra note 14, at 851.

55. Id. at 852.

56. Shultz, supra note 54, at 250–51.

57. Cherlin, supra note 14, at 852.

58. Davis, supra note 48, at 1966.

59. Cherlin, supra note 14, at 853.

60. Joanna Zhang, Marriage in the Golden Years: Revisiting Benefits and Obligations in Light of the New Individualism, 38 N.Y.U. Rev. L. & Soc. Change 301, 367 (2014).

61. See Cruz, supra note 3, at 1.

62. See id.

63. See Cherlin, supra note 14, at 850.

64. See Robert E. Emery et al., Marriage and Improved Well-Being, in Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First-Century Families, supra note 3, at 126.

65. Id.

66. Jane Koppelman, Nat’l Health Policy Forum, Issue Brief No. 770, Promoting Marriage as Welfare Policy: Looking at a Public Role in Private Lives 4 (Feb. 15, 2002), https://www.nhpf.org/library/issue-briefs/IB770_Marriage_2-15-02.pdf [https://perma.cc/2TNU-2FTN].

67. See id.

68. Haskins, supra note 52, at 55.

69. Ted L. Huston & Heidi Melz, The Case for (Promoting) Marriage: The Devil Is in the Details, 66 J. Marriage & Fam. 943, 943 (2004).

70. Koppleman, supra note 67, at 6.

71. Id.

72. See id. at 7.

73. See supra note 43 and accompanying text.

74. See Gates, supra note 46, at 81 (“Lesbian and gay parents report outcomes similar to those of their heterosexual counterparts with regard to mental health, stress, and parental competence.”).

75. See Koppleman, supra note 67, at 6.

76. See Lundberg et al., supra note 5, at 85.

77. See Wendy D. Manning et al., The Changing Institution of Marriage: Adolescents’ Expectations to Cohabit and to Marry, 69 J. Marriage & Fam. 559, 566 (2007); Neil Howe, Don’t Worry, America: Millennials Still Want to Marry, Forbes (Mar. 25, 2014), https://www.forbes.com/sites/realspin/2014/03/25/dont-worry-america-millennials-still-want-to-marry/#1fd752534035 [https://perma.cc/2Q47-JPLV].

78. Eli J. Finkel et al., The Suffocation of Marriage: Climbing Mount Maslow Without Enough Oxygen, 25 Psychol. Inquiry 1, 1–2 (2014). It sounds worse than it is. Finkel et al. refer to their conception of contemporary marriage as the “suffocation model” because this model of marriage requires satisfaction of needs located at “higher altitude” (i.e., oxygen-deprived, and hence, “suffocation”) levels on Abraham Maslow’s hierarchy of needs. Id. at 16; see infra text accompanying notes 80–98.

79. See Finkel et al., supra note 79, at 6–7.

80. Id. at 7, fig.1. Maslow’s hierarchy is “a motivational structure in which ‘the appearance of one need usually rests on the prior satisfaction of another, more pre-potent need.’” Id. at 7. “[A] person experiencing frustration of lower needs (e.g., starvation) typically becomes obsessed with satiating that need, frequently at the expense of all other higher needs (e.g., belongingness).” Id. However, once the lower-order needs are satisfied, they will seek satisfaction of their next-level needs. See id.

81. Id.

82. Id. at 9.

83. Amato, supra note 53, at 42 (citation omitted).

84. See Finkel et al., supra note 79, at 11–13; supra notes 17–18 and accompanying text.

85. Amato, supra note 53, at 42.

86. Finkel et al., supra note 79, at 9.

87. Amato, supra note 53, at 42.

88. Id.

89. Id.; see Finkel et al., supra note 79, at 9.

90. Cherlin, supra note 14, at 852; see Amato, supra note 53, at 42.

91. Finkel et al., supra note 79, at 13–14. Finkel et al. use the term “self-actualization” to represent “an aspirational state that virtually all people pursue and that, with the help of significant others and a supportive cultural milieu, many Americans reach, even if few generally persist in that state.” Eli J. Finkel et al., Marriage at the Summit: Response to the Commentaries, 25 Psychol. Inquiry 120, 127 (2014).

92. Finkel et al., supra note 79, at 12–21.

93. Id. at 13.

94. Id.

95. See Finkel et al., supra note 92, at 133.

96. See Finkel et al., supra note 79, at 2.

97. Id. at 17.

98. See Finkel et al., supra note 92, at 124.

99. Finkel et al., supra note 79, at 26.

100. Finkel et al., supra note 92, at 122, tbl.1. While Finkel et al. seem to paint a bleak picture of the state and future of marriage in America, the news is not all bad. Because of the special, and especially fulfilling, nature of higher-order need satisfaction and its centrality to feeling successful as a self (i.e., to feeling as though one is becoming her own ideal version of herself), Finkel et al. also point out that when one of these self-expressive marriages is successful as such, it can be “spectacularly fulfilling.” Finkel et al., supra note 79, at 16. So, while this new marital paradigm (or rather, perhaps more accurately, non-paradigm) is more susceptible to failure than marriages modeled on older paradigms, those which are successful can also be much more gratifying. Id. at 36.

101. See, e.g., Amato, supra note 53, at 42; Brooke C. Feeney & Nancy L. Collins, Much “I Do” About Nothing? Ascending Mount Maslow with an Oxygenated Marriage, 25 Psychol. Inquiry 69, 71 (2014); John G. Holmes & Sandra L. Murray, A Steep Hill to Climb: Reconciling the Expanding Demands of Marriage, 25 Psychol. Inquiry 80, 80 (2014); Paula R. Pietromonaco & Maureen Perry-Jenkins, Marriage in Whose America? What the Suffocation Model Misses, 25 Psychol. Inquiry 108, 108­–10 (2014).

102. Amato, supra note 53, at 43.

103. Id.

104. Id.

105. Id.

106. See Finkel et al., supra note 92, at 128.

107. Amato, supra note 53, at 43.

108. See id.

109. Id.

110. Id.

111. Although it may be somewhat outside the scope of this Comment (or at least would require more space than my page-length limitation will allow), it is interesting to note that there have been several Supreme Court holdings regarding marriage and the marital relationship that appear to support the individualistic marriage model. For a fascinating discussion of these Supreme Court opinions and their characterizations of marriage as a mode of self-expression or self-realization, see William C. Duncan, Marriage, Self-Definition and Self-Expression, 14 Ave Maria L. Rev. 151 (2016).

112. See Carbone & Cahn, supra note 3, 9–10.

113. An abstract discussion of the meaning of marriage would have to be from the perspective of the author, even as a purportedly objective observer of the state of marriage. See Eugene Gendlin, Experiencing and the Creation of Meaning 1–2 (1962) (“Besides logical schemes and sense perception we have come to recognize that there is also a powerful felt dimension of experience that is prelogical, and that functions importantly in what we think, what we perceive, and how we behave.”).

114. See, e.g., Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 Yale J. L. & Feminism 229, 240–52 (1994); Elizabeth R. Carter, Rethinking Premarital Agreements: A Collaborative Approach, 46 N.M. L. Rev. 354, 356 (2016); Jerome H. Poliacoff, What Does Love Have to Do with It?, Fam. Advoc., Winter 2011, at 12, 13–14; Katharine B. Silbaugh, Marriage Contracts and the Family Economy, 93 Nw. U. L. Rev. 65, 81–82 (1998); Beth Potier, For Many, Prenups Seem to Predict Doom, Harv. U. Gazette (Oct. 16, 2003), https://news.harvard.edu/gazette/story/2003/10/for-many-prenups-seem-to-predict-doom/ [https://perma.cc/RG4A-XS6W?type=image].

115. See Lynn A. Baker & Robert E. Emery, When Every Relationship Is Above Average: Perceptions and Expectations of Divorce at the Time of Marriage, 17 Law & Hum. Behav. 439, 448 (1993).

116. See Sam Margulies, The Psychology of Prenuptial Agreements, 31 J. Psychiatry & L. 415, 426 (2003).

117. See id. at 420–23.

118. Heather Mahar, Why Are There So Few Prenuptial Agreements? 11 (Harvard Law Sch. John M. Olin Ctr. for Law, Econ., & Bus., Discussion Paper No. 436, 2003).

119. Margulies, supra note 117, at 423.

120. See Baker & Emery, supra note 116, at 447–48; Mahar, supra note 119, at 9, 15; see also Andrea Anderson, Unflagging Optimism, 23 Sci. Am. Mind 11, 11 (2012) (“Most of us hold unrealistically optimistic views of the future, research shows, downplaying the likelihood that we will have bad experiences.”).

121. See Baker & Emery, supra note 116, at 447–48; Mahar, supra note 119, at 15.

122. Mahar, supra note 119, at 15.

123. Baker & Emery, supra note 116, at 447–48.

124. Mahar, supra note 119, at 11.

125. See id. at 2; Barbara Stark, Marriage Proposals: From One-Size-Fits-All to Postmodern Marriage Law, 89 Calif. L. Rev. 1479, 1496 n.84 (2001). Also contributing to the infrequent use of prenuptial agreements is the fact that “many couples do not realize that when they obtain a marriage license, they are consenting to a set of laws set out in their state’s divorce statute” that may or may not be “consistent with their personal preferences” or “flexible enough to accommodate their unique circumstances” should they eventually desire a divorce. See Mahar, supra note 119, at 7–8.

126. See, e.g., Carter, supra note 115, at 355 (“The objective of a premarital agreement ought to be the success of the relationship—not its dismantling.”); Mary Cushing Doherty, Romantic Premarital Agreements: Solving the Planning Issues Without the D Word, 29 J. Am. Acad. Matrim. Law. 35, 36 (2016) (“[A]ddressing shared plans could be practical and strengthen [the couple’s] commitment.”); Melvyn S. Frumkes, Why a Prenuptial Agreement, Fam. Advoc., Winter 2011, at 7, 7 (“Consideration of prenuptial agreements promotes financial planning and encourages the soon-to-be-married parties to consider and clarify their financial rights and obligations in advance of marriage and to plan ahead.”); Elizabeth S. Scott & Robert E. Scott, Marriage as Relational Contract, 84 Va. L. Rev. 1225, 1245–46 (1998) (“To the extent that society has an interest in the stability of marriage, and individuals view lasting marriage as part of a life plan, contracts can serve very well as s basis for an enduring, committed relationship.”).

127. See Linda J. Ravdin, Premarital Agreements: Drafting and Negotiation 3 (2d ed. 2017).

128. See Posner v. Posner, 233 So. 2d 381, 382 (Fla. 1970) (“It has long been the rule in a majority of courts of this country and in this State that contracts intended to facilitate or promote the procurement of a divorce will be declared illegal as contrary to public policy.”).

129. Id. at 381; see Ravdin, supra note 128, at 3.

130. Ravdin, supra note 128, at 7.

131. This is the case to the extent that prenuptial agreements are fair and voluntarily entered. See Sanford N. Katz, Family Law in America 24–25 (2d ed. 2015); Judith T. Younger, Antenuptial Agreements, 28 Wm. Mitchell L. Rev. 697, 700–02 (2001).

132. See Amberlynn Curry, Comment, The Uniform Premarital Agreement Act and Its Variations Throughout the States, 23 J. Am. Acad. Matrim. Law. 355, 356 (2010).

133. Ravdin, supra note 128, at 8.

134. Erika L. Haupt, For Better, for Worse, for Richer, for Poorer: Premarital Agreement Case Studies, 37 Real Prop. Prob. & Tr. J. 29, 29–30 (2004).

135. Frumkes, supra note 127, at 7.

136. See discussion of representativeness bias and accompanying notes, supra notes 121–28.

137. See supra text accompanying notes 80–109.

138. See Finkel et al., supra note 92, at 127.

139. See id.

140. Finkel et al., supra note 79, at 7.

141. See Finkel et al., supra note 92, at 127. Finkel et al. write that “Maslow did not make claims about the normative content of people’s self-actualization needs because an essential feature of his theory is that this content varies from one person to the next.” Id. (quoting Abraham H. Maslow, Motivation and Personality 46 (2nd ed. 1970)). Indeed, “he characterized the drive toward self-actualization in terms of ‘the desire to become more and more what one idiosyncratically is.’” Id.

142. See Finkel et al., supra note 92, at 127. Finkel et al. write:

     Light and Fitzsimons . . . get it exactly right when they suggest that “a 1750-era man may have sought a wife to procure the children needed to run the farm, while a 201[4]-era man may seek a wife to procure the children needed to fulfill his vision of himself as a family man.”

     Id. (emphasis added) (quoting Alysson E. Light & Grainee M. Fitzsimons, Contextualizing Marriage as a Means and a Goal, 25 Psychol. Inquiry 88, 89 (2014)).

143. See Amato, supra note 53, at 42–43; Finkel et al., supra note 92, at 127; see also id. at 137 (discussing the ways in which facilitating one’s spouse’s needs-fulfillment can be fulfilling to the facilitating spouse as well as the facilitated spouse); Steven J. Hanley & Steven C. Abell, Maslow and Relatedness: Creating an Interpersonal Model of Self-Actualization, 42 J. Humanistic Psychol. 37, 51–55 (2002).

144. See Eli J. Finkel et al., The Suffocation Model: Why Marriage in America Is Becoming an All-or-Nothing Institution, 24 Current Directions Psychol. Sci. 238, 239 (2015) (“Building a marriage that can help spouses meet their higher needs is more difficult than building a marriage that can help them meet their lower needs.”).

145. Finkel et al., supra note 79, at 15.

146. Id. at 16.

147. I am using the term “good” more in its philosophical sense, as something to be sought after, rather than its commercial sense (i.e., as a product). In a commercial sense, marriage may be more sensibly termed a “service.” But this is beyond the scope of this Comment.

148. Alternatively, if the characterization of marriage as instrumental (i.e., as having extrinsic value) is offensive, you could instead adopt the position that marriage is a good in itself (i.e., has intrinsic value), and then the notion that a marriage can be protected and supported by negotiation of a prenuptial agreement still applies. However, there are compelling reasons to think that marriages qua marriages are not goods in themselves, but rather that the value of a marriage inheres somehow in the relation and interaction of its participants. Otherwise it would not matter who you married, so long as you married someone. See Finkel et al., supra note 92, at 137–38.

149. See Lenore J. Weitzman, The Marriage Contract: A Guide to Living with Lovers and Spouses 227–35 (1981).

150. See Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 Va. L. Rev. 9, 38 (1990).

151. Martha Albertson Fineman, The Meaning of Marriage, in Marriage Proposals: Questioning a Legal Status 29, 34 (Anita Bernstein ed., 2006).

152. Bella DePaulo, 7 Kinds of Marriages – and One Awesome Alternative, Psychol. Today (Jul. 22, 2015), https://www.psychologytoday.com/blog/living-single/201507/7-kinds-marriages-and-one-awesome-alternative [https://perma.cc/M8Y3-QRDS]; Sascha Rothchild, The Case for the Starter Marriage, HuffPost: Life (Nov. 9, 2010, 10:33 AM), https://www.huffingtonpost.com/2010/11/09/starter-marriage_n_777375.html [https://perma.cc/73YF-WULZ]; Deborah Schupack, ‘Starter’ Marriages: So Early, So Brief, N.Y. Times (July 7, 1994), http://www.nytimes.com/1994/07/07/garden/starter-marriages-so-early-so-brief.html?pagewanted=all [https://perma.cc/RV2N-NEYW].

153. DePaulo, supra note 153.

154. Id.

155. Finkel et al., supra note 79, at 30–31.

156. See Danielle J. Lindemann, Going the Distance: Individualism and Interdependence in the Commuter Marriage, 79 J. Marriage & Fam. 1419, 1419 (2017).

157. DePaulo, supra note 153.

158. Id.

159. Ellie Delano, “Capstone” Marriage vs “Cornerstone Marriage”, Woman’s Day (May 30, 2013), https://www.womansday.com/relationships/dating-marriage/a46635/capstone-vs-cornerstone-marriage/ [https://perma.cc/YJN9-LPEU].

160. See Finkel et al., supra note 79, at 31.

161. See infra text accompanying note 164.

162. See Richard Bradley & H. Orri Stefánsson, Desire, Expectation, and Invariance, 125 Mind 691, 713 (2016) (“[C]ertain desires result from beliefs . . . .”); supra note 78 and accompanying text; see also The Psychology of Desire 29 (Wilhelm Hofmann & Loran F. Nordgren eds., 2015) (“[The] desire to pursue a future goal requires vivid, detailed, and positively affectively charged imagery of goal success and the behavioral path toward that success.”).

163. Fineman, supra note 152, at 34.

164. See Stark, supra note 126, at 1485 n.16 (“At least some marriages end because the parties had different expectations.”).

165. Perrine Ruby & Jean Decety, What You Believe Versus What You Think They Believe: A Neuroimaging Study of Conceptual Perspective-Taking, 17 Eur. J. Neuroscience 2475, 2475 (2003).

166. See id.

167. Id.

168. Id.

169. As I mentioned earlier, insight facilitates higher-order need fulfillment. See supra text accompanying notes 93–102.

170. See Finkel et al., supra note 92, at 132; Finkel et al., supra note 145, at 239; Finkel et al., supra note 79, at 7; supra text accompanying notes 97–98.

171. See Finkel et al., supra note 92, at 132, 140–41; Finkel et al., supra note 79, at 1–3, 30; supra text accompanying notes 100–01; see also Willard Mittelman, Maslow’s Study of Self-Actualization: A Reinterpretation, 31 J. Humanistic Psychol. 114, 119–20 (discussing the quality of openness in self-actualization study participants and the way that this openness “enhances their spontaneity and self-awareness” and improves their “sensitiv[ity] and responsive[ness] to the feelings and situations of others”)

172. See Weitzman, supra note 150, at 227–34.

173. See id. at 233 (“[T]he contract serves as a written statement of the goals of the relationship. To this end, its existence provides the parties with a good deal of guidance and security, for they know what to expect of the partner and what the partner expects of them. A clearly spelled-out standard of conduct and prescription of duties and obligations constitutes a more or less specific description of what the relationship should be or must be if it is to continue.”).

174. C. Neil Macrae et al., Turning I into Me: Imagining Your Future Self, 37 Consciousness & Cognition 207, 207 (2015).

175. C.f., e.g., Jean Decety & Julie Grèzes, The Power of Simulation: Imagining One’s Own and Other’s Behavior, 1079 Brain Res. 4, 4 (2006) (discussing the role of imagination in planning one’s own behavior).

176. See Macrae et al., supra note 175, at 208–09.

177. See Ruby & Decety, supra note 166, at 2475, 2477.

178. See id. at 2475.

179. See Weitzman, supra note 150, at 233; see also Donna Beck Weaver, The Collaborative Law Process for Prenuptial Agreements, 4 Pepp. Disp. Resol. L.J. 337, 340 (2004) (“The collaborative prenuptial agreement becomes a mutually developed blueprint for the marriage.”).

180. See Weitzman, supra note 150, at 233–34. Behavioral or “lifestyle” provisions can get pretty wild, and even include limitations on how many football games a spouse may watch per week, whether in-laws may sleep over, how much weight a partner can gain, and fidelity and sexual frequency clauses. Beverly Rice, The Most Bizarre Prenuptial Clauses (Dec. 2009), https://www.legalzoom.com/articles/the-most-bizarre-prenuptial-clauses [https://perma.cc/YR62-MZHL]. In fact, recently, after her husband had been unfaithful, rapper Cardi B accepted a post-marital agreement offer by her husband, rapper Offset, that would require Offset to pay her $10 million if he ever cheats again. Cardi B Accepts Offset’s Offer of $10 Million if He’s Caught Cheating Again – Details Here!, Floss Mag. (2018), https://flossmagazine.com/cardi-b-accepts-offsets-offer-of-10-million-if-hes-caught-cheating-again-details-here/?fbclid=IwAR3yMd4j2OJEBOBTMwqhPwplyWqX_94Pxc8EM4KSFvuS09yGzSOu5BEnqtQ [https://perma.cc/GFE6-73QR].

181. Weitzman, supra note 150, at 232–33.

182. See id. at 234–35.

183. See Weaver, supra note 180, at 337.

184. See supra text accompanying notes 115–19.

185. See Weaver, supra note 180, at 340.

186. Poliacoff, supra note 115, at 15.

187. See Ravdin, supra note 128, at 51, 55–56.

188. Id. at 85.

189. Id. at 92–93.

190. Id. at 94–95.

191. Id. at 94.

192. Id. at 95.

193. Id. The assumption of significant debt upon marriage (i.e., a relatively low-debt person marrying someone with substantial debt) correlates with a decline in marital satisfaction. Jeffrey Dew, Debt Change and Marital Satisfaction Change in Recently Married Couples, 57 Fam. Rel. 60, 69 (2008).

194. Poliacoff, supra note 115, at 15.

195. Weitzman, supra note 150, at 233.

196. Gary Chartier, Marriage: A Normative Framework, 9 Fla. Coastal L. Rev. 347, 405 (2008).

197. Weitzman, supra note 150, at 234.

198. See id. at 234; supra text accompanying notes 92–101.

199. Weitzman, supra note 150, at 240.

200. See id. at 232–33.

201. See Scott, supra note 151, at 38; Richard R. Orsinger et al., Top Ten Ways to Screw up a Premarital Agreement, in Advanced Family Law Drafting and Advocacy: Art and Form 8 (2003).

202. Scott, supra note 151, at 13.

203. Id.

204. Id. at 41.

205. Id. at 41–42.

206. See id. at 43.

207. See In re Marriage of Mehren & Dargan, 118 Cal. App. 4th 1167, 1171–72 (2004).

208. See Scott, supra note 151, at 44.

209. See Diosdado v. Diosdado, 97 Cal. App. 4th 470, 474 (2002); Fox v. Fox, 731 S.E.2d 676, 679 (Ga. 2012).

210. See Saul Levmore, Love It or Leave It: Property Rules, Liability Rules, and Exclusivity of Remedies in Partnership and Marriage, 58 Law & Contemp. Probs. 221, 230–31 (Spring 1995); Scott, supra note 151, at 44–45.

211. See Scott, supra note 151, at 73.

212. See id. at 44.

213. See id.; see also, e.g., Rogers v. Rogers, CA01-790, 2002 WL 1335654, at *8 (Ark. Ct. App. June 19, 2002).

214. See Scott, supra note 151, at 44; Jana Douglas et al., eds., Marriage and Divorce, 17 Geo. J. Gender & L. 325, 345–48 (2016).

215. See Scott, supra note 151, at 73.

216. See id.

217. See State Policies to Promote Marriage, Office of the Assistant Sec’y for Planning and Evaluation, U.S. Dep’t of Health & Human Servs. (Sept. 1, 2002), https://aspe.hhs.gov/report/state-policies-promote-marriage [perma.cc/9XM8-KCHN] (click “ATTACHMENT A. DETAILED MATRICES”; then click “TABLE 3”).

218. See Scott, supra note 151, at 44.

219. See id. at 50, 76–78.

220. See id.

221. Id. at 74–76; see also, e.g., Rogers v. Rogers, CA01-790, 2002 WL 1335654, at *8 (Ark. Ct. App. June 19, 2002).

222. See Scott, supra note 151, at 44.

223. Solangel Maldonado, Facilitating Forgiveness and Reconciliation in “Good Enough” Marriages, 13 Pepp. Disp. Resol. L.J. 105, 128–29 (2013).

224. See Jana Douglas et al., supra note 215, at 345.

225. See id.

226. See id. at 347. After all, as we know, the divorce rate is nearly fifty percent, notwithstanding any representativeness bias one may experience at the outset of his or her relationship. While the ideal option may be to draft and incorporate provisions that will make divorce less likely, “[i]t does not do to leave a live dragon out of your calculations, if you live near him.” J.R.R. Tolkien, The Hobbit 199 (70th anniversary ed. 2007).

227. See Susan M. Buckholz, Collaborative Dissolution, Vt. B.J., Spring 2004, at 37, 37.

228. Id.

229. See supra text accompanying notes 184–94.

230. See Katherine E. Stoner, Divorce Without Court: A Guide to Mediation & Collaborative Divorce 38 (Lina Guillen ed., 5th ed. 2018); Buckholz, supra note 228, at 37; Stephanie Dietz, Collaborative Family Law, Bench & B., Mar. 2006, at 24, 24. See generally Gay G. Cox & Robert J. Matlock, The Case for Collaborative Law, 11 Tex. Wesleyan L. Rev. 45, 48–62 (2004) (describing the collaborative dissolution practice as one in which clients are “seeking a peaceful resolution of their differences and avoidance of a litigation battle, self-determination of the outcome, and flexibility of the process”); Pauline H. Tesler, Collaborative Family Law, 4 Pepp. Disp. Resol. L.J. 317, 328–30 (2004) (explaining that collaborative lawyers seek “to help clients discover common interests and goals”).

231. See Tesler, supra note 231, at 328–30.

232. See Carmina K. Tessitore, Divorce Mediation: Mediating Financial Disputes, Conn. Law., Sept. 2014, at 16, 16–17.

233. See Stoner, supra note 231, at 115–20.

234. One way to provide that the breadwinning spouse will cover the cost of both attorneys is by way of an indemnity provision. See, e.g., Kantor v. Kantor, 8 P.3d 825, 830–31 (Nev. 2000).

235. See supra text accompanying note 164.

236. See Stoner, supra note 231, at 116.

237. See Warren D. TenHouten, Emotion and Reason 1–2 (2013).

238. See Margulies, supra note 117, at 423; supra text accompanying notes 115–20.

239. See Margulies, supra note 117, at 423–31.

240. See Arlene G. Dubin, Prenups for Lovers 63–64 (2001); Kathleen Burns Kingsbury, Breaking Money Silence: How to Shatter Money Taboos, Talk More Openly About Finances, and Live a Richer Life 119 (2017); Eric Tyson, Let’s Get Real About Money! 73 (2008); Nadia Goodman, How to Ask Your Partner for a Prenup, Entrepreneur (June 19, 2013), https://www.entrepreneur.com/article/227088 [https://perma.cc/4CAV-QEAV]; How to Talk About Prenuptial Agreements: 10 Top Tips, Bride (Jan. 4, 2017), www.bridemagazine.co.uk/articles/how-to-talk-about-prenuptial-agreements [https://perma.cc/34V3-P5LE].

241. See supra text accompanying notes 115–28.

242. See supra text accompanying notes 173–79 (discussing the way in which imagining a more temporally distant self tends to occur in third-person, rather than first-person perspective).

243. See Tyson, supra note 241, at 73; Jaimie Mackey, Here’s How to Start That Prenup Conversation, Brides (June 2, 2017), https://www.brides.com/story/heres-how-to-start-that-prenup-conversation [https://perma.cc/L2U7-S7G7].

244. See Ravdin, supra note 128, at 61; Tyson, supra note 241, at 73.

245. See Tyson, supra note 241, at 73; Laura Zaccaro, Prenups 101: More Couples Sign Agreements Before They Say ‘I Do’, ABCNews (Sept. 29, 2010), http://abcnews.go.com/GMA/MellodyHobson/prenups-101-couples-married/story?id=11761690 [https://perma.cc/TR4Y-5FQB].

246. See Kingsbury, supra note 241, at 119; Libby Kane, How to Ask for a Prenup Without Causing a Breakup, Bus. Insider (Sept. 23, 2014), http://www.businessinsider.com/how-to-ask-for-prenup-2014-9 [https://perma.cc/SP3A-3RPD]; supra text accompanying notes 117–20. For a discussion of what empathy is, see The Social Neuroscience of Empathy 4–8 (Jean Decety & William Ickes eds., 2009).

247. See Kane, supra note 247.

248. See Margulies, supra note 117, at 423–31.

249. See Scott & Scott, supra note 127, at 1284 (“Bonding arrangements are precommitments that align the interest of each spouse with that of the other through self-limiting constraints. Such arrangements promote trust as they broadcast each spouse’s cooperative intentions.”).

250. See id.

251. See David A. Hoffman & Richard N. Wolman, The Psychology of Mediation, 14 Cardozo J. Conflict Resol. 759, 785 (2013) (discussing the “rule of reciprocity” in negotiation).

252. See Goodman, supra note 241; Kane, supra note 247; How to Talk About Prenuptial Agreements, supra note 241.

253. Hoffman & Wolman, supra note 252, at 771.

254. See id. at 774–75.

255. See supra Section IV.D.

256. See Weitzman, supra note 150, at 232–33.

257. See Weaver, supra note 180, at 340–42.

258. See Carter, supra note 115, at 380–82; Weaver, supra note 180, at 340–42; supra text accompanying notes 225–31.

259. Weaver, supra note 180, at 337–38.

260. Id. at 338–39.

261. Id. at 339.

262. See Carter, supra note 115, at 380–81.

263. In the case of collaborative dissolution, independent representation will be necessary. See Dietz, supra note 231, at 24; Tesler, supra note 231, at 330.

264. See Weaver, supra note 180, at 340.

265. Carter, supra note 115, at 382.

266. Weaver, supra note 180, at 340.

267. See Dubin, supra note 241, at 68–70.

268. See Weitzman, supra note 150, at 228.

269. See id.

270. See id.

271. See Katy Winter, Brides Spend 36 Days Planning Their Wedding, Daily Mail (July 24, 2014), http://www.dailymail.co.uk/femail/article-2703071/Brides-spend-36-days-planning-wedding-three-quarters-big-decisions-MET-groom.html [https://perma.cc/J2KN-JALF].

272. The following considerations of legal enforceability of prenuptial agreements will focus primarily on their treatment under Texas law and by Texas courts. For a discussion of how premarital agreements are generally treated under the law in the United States, see generally J Thomas Oldham, Premarital Agreements in the United States, 2012 Int’l Surv. Fam. L. 405.

273. See Jonathan E. Fields, Forbidden Provisions in Prenuptial Agreements: Legal and Practical Considerations for the Matrimonial Lawyer, 21 J. Am. Acad. Matrim. Law. 413, 414 (2008).

274. See Barbara A. Atwood & Brian H. Bix, A New Uniform Law for Premarital and Marital Agreements, 46 Fam. L.Q. 313, 318–24 (2012); Brian H. Bix, Agreements in American Family Law, 4 Int’l J. Juris. Fam. 115, 116–20 (2013).

275. Unif. Premarital Agreement Act, Prefatory Note, 9C U.L.A. 35 (2001).

276. See Tex. Fam. Code Ann. ch. 4(A).

277. Levmore, supra note 211, at 221.

278. Fields, supra note 274, at 428; see also Levmore, supra note 211, at 225–26; Robert A. Pollak, Comment on Mary Anne Case’s Enforcing Bargains in an Ongoing Marriage, 35 Wash. U. J.L. & Pol’y 261, 261 n.5 (2011); Eric Rasmusen & Jeffrey Evans Stake, Lifting the Veil of Ignorance: Personalizing the Marriage Contract, 73 Ind. L.J. 453, 455–56 (1998).

279. Levmore, supra note 211, at 224.

280. See Scott & Scott, supra note 127, at 1294–95.

281. Id. at 1294.

282. See Levmore, supra note 211, at 240–41.

283. The enforcement of these would only be necessary in the event of divorce. However, there is a possibility that courts would now consider enforcing financial terms of an agreement governing an ongoing marriage. See Rasmusen & Stake, supra note 279, at 483.

284. See id. at 482–83.

285. See supra Sections IV.D–F.

286. See Pollak, supra note 279, at 268–69.

287. See id. at 270–71.

288. See id. at 268; Scott & Scott, supra note 127, at 1285–92.

289. See Scott & Scott, supra note 127, at 1288–90.

290. See Pollak, supra note 279, at 268; see also David Owens, A Simple Theory of Promising, 115 Phil. Rev. 51, 51 (2006) (arguing that “promising exists because, at least when it comes to each other’s actions, human beings often have what might be called an authority interest: I often want it to be the case that I, rather than you, have the authority to determine what you do”).

291. Pollak, supra note 279, at 268.

292. Weitzman, supra note 150, at 233 (quoting J. Gipson Wells, A Critical Look at Personal Marriage Contracts, 25 Fam. Coordinator J. Educ. Counseling & Servs. 33, 36–37 (1976)).

293. See Scott & Scott, supra note 127, at 1286 & n.135 (discussing the “‘lock-in’ effect” of repeated mutual cooperation).

294. See Weitzman, supra note 150, at 235.

295. Id.

296. For a discussion of precommitment strategies and prenuptial agreement provisions for making divorce more costly, see supra Section IV.E.

297. If those long-term goals have changed for one partner or the other, however, then the raised cost of divorce is not likely to offset the benefit of the divorce sufficiently enough to prevent it. On the other hand, the increased cost of divorce created by the precommitment provisions’ protraction of the dissolution process may encourage the partner whose long-term goals have changed to be more efficient in seeking divorce, and thereby discourage noncooperative behavior to the extent that such behavior might compound the protraction of the divorce process. For example, one partner’s long-term goals may change to an extent that the marriage is no longer tenable for that partner. Should that occur, and if the couple incorporated, say, a provision requiring an attempt at collaborative dissolution, then this partner may be encouraged to behave more cooperatively to the extent that such cooperation smooths and expedites the collaborative dissolution process. See Scott, supra note 151, at 56, 58–62.

298. Tex. Fam. Code Ann. § 4.003(a)(8); Unif. Premarital Agreement Act § 3(a)(8), 9C U.L.A. 43 (2001).

299. See, for example, my discussion of using the prenuptial agreement negotiation and drafting process as an opportunity to learn about one’s own marital and life goals and expectations, supra text accompanying notes 170–79. Indeed, one legal scholar pointed out that “[e]ven if [a couple is] in seeming agreement about the terms [of their prenup], they may decide that the process of negotiation has sufficiently served their interests” such that they do not feel it necessary to execute the agreement. Joseph W. McKnight, A Friendly Contract: Unlike Divorce, Prenuptial Agreements Are Not Adversarial, Fam. Advoc., Winter 1984, at 4, 4.

300. See, e.g., Moore v. Moore, 383 S.W.3d 190, 194 (Tex. App.—Dallas 2012, pet. denied) (stating that under the Uniform Premarital Agreement Act “premarital agreements are presumptively binding and enforceable under Texas law”); Marsh v. Marsh, 949 S.W.2d 734, 739 (Tex. App.—Houston [14th Dist.] 1997, no writ) (declaring that “premarital agreements are presumptively enforceable”).

301. See Tex. Fam. Code Ann. § 4.006; see also Atwood & Bix, supra note 275, at 321–22.

302. See Ravdin, supra note 128, § 2.05(b).

303. Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 695–96 (Tex. App.—Austin 2005, pet. denied); see also Moore, 383 S.W.3d at 195–97.

304. Tex. Fam. Code Ann. § 4.006(a)(2)(A)–(B).

305. See Stephanie B. Casteel, Planning and Drafting Premarital Agreements, ALI-ABA Est. Plan. Course Materials J., April 2010, at 5, 15–16.

306. See Fields, supra note 274, at 437–38.

307. Id.

308. You should retain independent counsel, even if you intend to use the collaborative law process for negotiating and drafting your prenup, if for no other reason than that “[s]ome courts have looked to the absence of independent counsel as a factor in determining whether an agreement was entered into involuntarily and under duress.” Casteel, supra note 306, at 16. But see id. at 17 (noting that independent legal representation is not a formal legal requirement).

309. That is, you will be in a better position to avoid these concerns because you will have had an open, frank discussion about equitability issues and financial circumstances. See supra Sections IV.D–F.

310. This should help to prevent a finding of duress. See Casteel, supra note 306, at 16 (“Courts have also looked to the amount of time between execution of the premarital agreement and the marriage in considering whether an agreement was entered into voluntarily.”); see also Willard H. Dasilva, Making It Stick: The Five Requisites of an Enforceable Agreement, Fam. Advoc., Winter 2011, at 27, 28.

311. This presumably will prevent the possibility of fraud. Proof of fraud requires that one party “knowingly made false representations with the intent to deceive.” See Casteel, supra note 306, at 17.

312. This should also help to prevent a finding of duress. See id. at 16–17 (showing the difficulty of invalidating a pre-marital agreement for duress).

313. This should help with voluntariness issues. See supra text accompanying notes 304–06.

314. See supra note 309; see also Dasilva, supra note 311, at 28–29.

315. See Bruce E. Friedman, Attacking and Defending Prenuptial Agreements, St. Louis B.J., Fall 2016, at 4, 4.