Premarital Agreements

32 Chapter 2
Premarital agreement
an agreement made by two
persons about to be married
defining for themselves their
respective rights, duties, and
responsibilities in the event their
marriage terminates by death,
annulment, separation, or divorce
Public policy
an idea or principle that is
considered right and fair and in the
best interest of the general public
Per se invalid
invalid in and of itself, standing
alone, without reference to any
additional facts or circumstances
A premarital agreement (sometimes called a premarital contract, prenuptial agree-
ment, or antenuptial agreement) is an agreement made by two persons about to be
married. The agreement is an effort by the parties to define for themselves rights,
duties, and responsibilities that flow from the marital relationship and that otherwise
would be regulated and determined by state law upon death, annulment, separation, or
divorce. What usually happens in a premarital agreement is that one or both of the
parties agree to give up spousal support, an equal or equitable division of property, or
other rights they might be entitled to under state law. Despite past fears that premarital
agreements encourage divorce, they may actually promote marriage. People may
choose to marry who might not do so without the personalized safety net or “insur-
ance policy” the premarital agreement provides in the event the marriage does not last.
In an effort to maintain social order and protect the general public interest, state and
federal legislatures regulate various dimensions of our lives. For example, we have laws
and regulations about education and employment, about finances and business trans-
actions, about children and families, about marriage and death. Statutes and judicial
rulings are designed to balance individual freedom and protection of the larger society
and are based on public policies. Public policies are ideas or principles that are consid-
ered right and fair and in the best interest of the general public. They reflect current
morals and established customs. For example, mandatory education laws requiring
children to attend school until a certain age are based on the broad public policy that
children are vulnerable and need to be protected and provided the foundation they
need to become healthy, productive adults. In response, the state establishes and man-
ages a public education system to ensure that children receive the education required
by law. In addition, however, we have private and charter” schools, parochial schools,
and “home schooling of children as educational alternatives for parents who want to
create their own vehicles for complying with the law, vehicles tailored to their unique
goals and needs. The state still monitors these alternatives to an extent but at the same
time recognizes the right of parents to raise their children as they see fit as long as they
do not break the law or violate an overriding public policy. Public policies that impact
various other family law issues are referenced throughout this text.
One of the primary public policies that legislatures and courts in the United States
historically have supported is one favoring the marital relationship as the fundamental
structural unit of society. In support of that policy they have legislated and decreed reg-
ulations designed to protect the institution of marriage and the members of the family
in the event of death or divorce. These regulations have been influenced by prevailing
societal views about sexual morality, the vulnerability of children, and gender-related is-
sues including the respective roles and relative power of men and women in society. In
this context, the states were initially unwilling to permit couples to design their own
agreements determining what would happen to their property upon divorce.
Although courts had, for many years, enforced premarital agreements that
addressed property distribution upon death,
agreements made in contemplation of
marriage that anticipated the possibility of divorce were viewed as per se invalid until
the 1970s. The basic concern was that the party who would benefit most from the
agreement (usually the male partner) would be motivated to terminate the marriage
and the female partner would be left destitute. This perception has gradually changed
M02_WILS3688_01_SE_C02.QXD 8/7/08 4:18 PM Page 32
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