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49 Stan. L. Rev. 887 (1996-1997)
Planning for Love: The Politics of Prenuptial Agreements

handle is hein.journals/stflr49 and id is 897 raw text is: Planning for Love: The Politics of Prenuptial Agreements Allison A. Marston* This note challenges the stereotypes that define the role of prenuptial agreements in contemporary American society. Specifically, this note ques- tions the assumption that only the rich, the selfish, or the mercenary can bene- fit from a prenuptial contract. Allison Marston examines the increasing use of prenuptial agreements over the past twenty years and describes the types of people who should consider drafting them. Ms. Marston summarizes the law about prenuptial contracts and the kinds of provisions that courts will and will not enforce. She then places prenuptial agreements in a legal, historical, and psychological context. Ms. Marston argues that the villification of prenuptials is a curious, and even irrational, response to a document that merely supplants state-written contracts governing the disposition of assets at the end of a mar- riage, has a long history in Anglo-American society, and potentially improves communication on important issues before marriage. Nevertheless, this note acknowledges that many prenuptial agreements have been signed that dispro- portionately hurt one of the marital partners. Ms. Mdrston argues that the solution to this problem is not to limit the enforcement of these agreements but to seek to ensure that each party has full knowledge of his or her rights and has the opportunity to negotiate the terms of the contract. To this end, she concludes that courts should require that each party entering into a prenuptial agreement have had the benefit of consulting with independent counsel prior to the signing of the contract. This reform, not yet embraced by any jurisdiction, would preserve parties'freedom of contract while preventing the coercion pos- sible in negotiations that take place in the highly-charged atmosphere of an impending wedding. * Third-year law student, Stanford Law School. I am indebted to Professors Deborah Rhode and Janet Halley for their critical insights and encouragement during the writing of this piece. Special thanks to the members of the Spring 1996 Gender Law & Public Policy seminar. Finally, I would like to thank the staff and editors of the Stanford Law Review, especially Laura Bradford, Jessica Gonzalez, Dan McBride, and Gail Mosse.

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