Lifting the Veil of Ignorance: Personalizing the Marriage Contract

Indiana Law Journal

Volumn 73, Issue 2, 1998, Pages 453-502

  Rasmusen, Eric ^a,b   Stake, Jeffrey Evans ^a,c,d  

^a INDIANA UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

^c UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

^d GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

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EID: 0032377821     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (257)

1. See HENRY SUMNER MAINE, ANCIENT LAW 141 (Dorset Press 1986) (1861); cf. 2 MAX WEBER, ECONOMY AND SOCIETY 671 (Guenther Roth & Claus Wittich eds., University of Cal. Press 1978) (1956) ("[T]he farther we go back in legal history, the less significant becomes contract as a device of economic acquisition in fields other than the law of the family and inheritance."). But see GRANT GILMORE, THE DEATH OF CONTRACT 3 (1974) ("Contract, like God, is dead."); Roscoe Pound, The End of Law as Developed in Juristic Thought, 30 HARV. L. REV. 201, 219 (1917) ("[T]he whole course of English and American law today is belying it unless, indeed, we are progressing backward.").
2. See HENRY SUMNER MAINE, ANCIENT LAW 141 (Dorset Press 1986) (1861); cf. 2 MAX WEBER, ECONOMY AND SOCIETY 671 (Guenther Roth & Claus Wittich eds., University of Cal. Press 1978) (1956) ("[T]he farther we go back in legal history, the less significant becomes contract as a device of economic acquisition in fields other than the law of the family and inheritance."). But see GRANT GILMORE, THE DEATH OF CONTRACT 3 (1974) ("Contract, like God, is dead."); Roscoe Pound, The End of Law as Developed in Juristic Thought, 30 HARV. L. REV. 201, 219 (1917) ("[T]he whole course of English and American law today is belying it unless, indeed, we are progressing backward.").
3. See HENRY SUMNER MAINE, ANCIENT LAW 141 (Dorset Press 1986) (1861); cf. 2 MAX WEBER, ECONOMY AND SOCIETY 671 (Guenther Roth & Claus Wittich eds., University of Cal. Press 1978) (1956) ("[T]he farther we go back in legal history, the less significant becomes contract as a device of economic acquisition in fields other than the law of the family and inheritance."). But see GRANT GILMORE, THE DEATH OF CONTRACT 3 (1974) ("Contract, like God, is dead."); Roscoe Pound, The End of Law as Developed in Juristic Thought, 30 HARV. L. REV. 201, 219 (1917) ("[T]he whole course of English and American law today is belying it unless, indeed, we are progressing backward.").
4. See HENRY SUMNER MAINE, ANCIENT LAW 141 (Dorset Press 1986) (1861); cf. 2 MAX WEBER, ECONOMY AND SOCIETY 671 (Guenther Roth & Claus Wittich eds., University of Cal. Press 1978) (1956) ("[T]he farther we go back in legal history, the less significant becomes contract as a device of economic acquisition in fields other than the law of the family and inheritance."). But see GRANT GILMORE, THE DEATH OF CONTRACT 3 (1974) ("Contract, like God, is dead."); Roscoe Pound, The End of Law as Developed in Juristic Thought, 30 HARV. L. REV. 201, 219 (1917) ("[T]he whole course of English and American law today is belying it unless, indeed, we are progressing backward.").
5. Comparing the degrees of freedom in medieval tenancies and the oaths of loyalty once binding tenants to lords to the freedom allowed today (as evidenced by the sheer length of leases), today's law would appear to be less a matter of status. The fact of tenancy told more about the relationship of yore. But see CARL E. SCHNEIDER & MARGARET F. BRINIG, AN INVITATION TO FAMILY LAW 348-49 (1995) (arguing current tenancies retain many elements of status).
6. Numerous authors have, however, advocated marital contracts. See, e.g., Richard W. Bartke, Marital Sharing-Why Not Do It by Contract?, 67 GEO. L.J. 1131, 1134 (1979) (proposing model statutory framework that would permit couples to elect a community- property arrangement for their marriage); Theodore F. Haas, The Rationality and Enforceability of Contractual Restrictions on Divorce, 66 N.C. L. REV. 879, 894 (1988) (proposing model antenuptial agreements that impose financial burdens for initiating divorce); Joan M. Krauskopf & Rhonda C. Thomas, Partnership Marriage: The Solution to an Ineffective and Inequitable Law of Support, 35 OHIO ST. L.J. 558 (1974) (discussing partnership agreements between husbands and wives); Marjorie Maguire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 207 (1982) (arguing the utility of marriage contracts to govern human interactions); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 42-44, 79-81 (1990) (discussing the use of precommitment strategies, including antenuptial contracts, to lower divorce rates); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. (forthcoming May 1998) (Aug. 1997 manuscript at 91-92, on file with authors) ("the ability to negotiate a binding antenuptial agreement would still have salutary effects, because it would arrest the bargaining squeeze and eliminate the potential for opportunism that it presents").
7. Numerous authors have, however, advocated marital contracts. See, e.g., Richard W. Bartke, Marital Sharing-Why Not Do It by Contract?, 67 GEO. L.J. 1131, 1134 (1979) (proposing model statutory framework that would permit couples to elect a community- property arrangement for their marriage); Theodore F. Haas, The Rationality and Enforceability of Contractual Restrictions on Divorce, 66 N.C. L. REV. 879, 894 (1988) (proposing model antenuptial agreements that impose financial burdens for initiating divorce); Joan M. Krauskopf & Rhonda C. Thomas, Partnership Marriage: The Solution to an Ineffective and Inequitable Law of Support, 35 OHIO ST. L.J. 558 (1974) (discussing partnership agreements between husbands and wives); Marjorie Maguire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 207 (1982) (arguing the utility of marriage contracts to govern human interactions); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 42-44, 79-81 (1990) (discussing the use of precommitment strategies, including antenuptial contracts, to lower divorce rates); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. (forthcoming May 1998) (Aug. 1997 manuscript at 91-92, on file with authors) ("the ability to negotiate a binding antenuptial agreement would still have salutary effects, because it would arrest the bargaining squeeze and eliminate the potential for opportunism that it presents").
8. Numerous authors have, however, advocated marital contracts. See, e.g., Richard W. Bartke, Marital Sharing-Why Not Do It by Contract?, 67 GEO. L.J. 1131, 1134 (1979) (proposing model statutory framework that would permit couples to elect a community- property arrangement for their marriage); Theodore F. Haas, The Rationality and Enforceability of Contractual Restrictions on Divorce, 66 N.C. L. REV. 879, 894 (1988) (proposing model antenuptial agreements that impose financial burdens for initiating divorce); Joan M. Krauskopf & Rhonda C. Thomas, Partnership Marriage: The Solution to an Ineffective and Inequitable Law of Support, 35 OHIO ST. L.J. 558 (1974) (discussing partnership agreements between husbands and wives); Marjorie Maguire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 207 (1982) (arguing the utility of marriage contracts to govern human interactions); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 42-44, 79-81 (1990) (discussing the use of precommitment strategies, including antenuptial contracts, to lower divorce rates); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. (forthcoming May 1998) (Aug. 1997 manuscript at 91-92, on file with authors) ("the ability to negotiate a binding antenuptial agreement would still have salutary effects, because it would arrest the bargaining squeeze and eliminate the potential for opportunism that it presents").
9. Numerous authors have, however, advocated marital contracts. See, e.g., Richard W. Bartke, Marital Sharing-Why Not Do It by Contract?, 67 GEO. L.J. 1131, 1134 (1979) (proposing model statutory framework that would permit couples to elect a community- property arrangement for their marriage); Theodore F. Haas, The Rationality and Enforceability of Contractual Restrictions on Divorce, 66 N.C. L. REV. 879, 894 (1988) (proposing model antenuptial agreements that impose financial burdens for initiating divorce); Joan M. Krauskopf & Rhonda C. Thomas, Partnership Marriage: The Solution to an Ineffective and Inequitable Law of Support, 35 OHIO ST. L.J. 558 (1974) (discussing partnership agreements between husbands and wives); Marjorie Maguire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 207 (1982) (arguing the utility of marriage contracts to govern human interactions); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 42-44, 79-81 (1990) (discussing the use of precommitment strategies, including antenuptial contracts, to lower divorce rates); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. (forthcoming May 1998) (Aug. 1997 manuscript at 91-92, on file with authors) ("the ability to negotiate a binding antenuptial agreement would still have salutary effects, because it would arrest the bargaining squeeze and eliminate the potential for opportunism that it presents").
10. Numerous authors have, however, advocated marital contracts. See, e.g., Richard W. Bartke, Marital Sharing-Why Not Do It by Contract?, 67 GEO. L.J. 1131, 1134 (1979) (proposing model statutory framework that would permit couples to elect a community- property arrangement for their marriage); Theodore F. Haas, The Rationality and Enforceability of Contractual Restrictions on Divorce, 66 N.C. L. REV. 879, 894 (1988) (proposing model antenuptial agreements that impose financial burdens for initiating divorce); Joan M. Krauskopf & Rhonda C. Thomas, Partnership Marriage: The Solution to an Ineffective and Inequitable Law of Support, 35 OHIO ST. L.J. 558 (1974) (discussing partnership agreements between husbands and wives); Marjorie Maguire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 207 (1982) (arguing the utility of marriage contracts to govern human interactions); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 42-44, 79-81 (1990) (discussing the use of precommitment strategies, including antenuptial contracts, to lower divorce rates); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. (forthcoming May 1998) (Aug. 1997 manuscript at 91-92, on file with authors) ("the ability to negotiate a binding antenuptial agreement would still have salutary effects, because it would arrest the bargaining squeeze and eliminate the potential for opportunism that it presents").
11. Numerous authors have, however, advocated marital contracts. See, e.g., Richard W. Bartke, Marital Sharing-Why Not Do It by Contract?, 67 GEO. L.J. 1131, 1134 (1979) (proposing model statutory framework that would permit couples to elect a community- property arrangement for their marriage); Theodore F. Haas, The Rationality and Enforceability of Contractual Restrictions on Divorce, 66 N.C. L. REV. 879, 894 (1988) (proposing model antenuptial agreements that impose financial burdens for initiating divorce); Joan M. Krauskopf & Rhonda C. Thomas, Partnership Marriage: The Solution to an Ineffective and Inequitable Law of Support, 35 OHIO ST. L.J. 558 (1974) (discussing partnership agreements between husbands and wives); Marjorie Maguire Schultz, Contractual Ordering of Marriage: A New Model for State Policy, 70 CAL. L. REV. 207 (1982) (arguing the utility of marriage contracts to govern human interactions); Elizabeth S. Scott, Rational Decisionmaking About Marriage and Divorce, 76 VA. L. REV. 9, 42-44, 79-81 (1990) (discussing the use of precommitment strategies, including antenuptial contracts, to lower divorce rates); Amy L. Wax, Bargaining in the Shadow of the Market: Is There a Future for Egalitarian Marriage?, 84 VA. L. REV. (forthcoming May 1998) (Aug. 1997 manuscript at 91-92, on file with authors) ("the ability to negotiate a binding antenuptial agreement would still have salutary effects, because it would arrest the bargaining squeeze and eliminate the potential for opportunism that it presents").
12. Maynard v. Hill, 125 U.S. 190, 210-11 (1888). It is rare for the Court to engage in sarcasm, but the facts of this case make one wonder. The holding in this case appears to be that the law of marriage is up to the legislature, not the parties to the marriage. But the facts are that a man went to Oregon, broke his promise to his Ohio wife to return, and successfully lobbied the legislature for a customized, unilateral, no-fault divorce without notifying his wife.
13. But cf. Jana B. Singer, The Privatization of Family Law, 1992 WIS. L. REV. 1443 (describing insightfully the trend toward privatization).
14. Domestic-relations cases made up a third of civil filings in state courts of general jurisdiction in 1992. See BRIAN J. OSTRUM ET AL., STATE COURT CASELOAD STATISTICS ANNUAL REPORT 1992, at 23 (1994).
15. See Michael J. Trebilcock & Rosemin Keshvani, The Role of Private Ordering in Family Law: A Law and Economics Perspective, 41 U. TORONTO L.J. 533 (1991).
16. See Lacks v. Lacks, 189 N.E.2d 487, 488 (N.Y. 1963) (holding that a contract to pay a spouse during marriage is void); see also McGuire v. McGuire, 59 N.W.2d 336, 342 (Neb. 1953) (requiring a separation before a party can bring an action for maintenance). The requirement of minimal support is discussed infra text accompanying notes 136-38. See also notes 153, 193.
17. Even where the well-being of children is involved, courts resist intervening in disputes during marriage. It would be anomalous to hold that a court of equity may sit in constant supervision over a household and see that either parent's will and determination in the upbringing of a child is obeyed, even though the parents' dispute might involve what is best for the child. Every difference of opinion between parents concerning their child's upbringing necessarily involves the question of the child's best interest. Kilgrow v. Kilgrow, 107 So. 2d 885, 889 (Ala. 1958) (denying injunction restraining wife from taking child to certain school in violation of premarital agreement).
18. See Saul Levmore, Love It or Leave It: Property Rules, Liability Rules, and Exclusivity of Remedies in Partnership and Marriage, LAW & CONTEMP. PROBS., Spring 1995, at 221, 225-26 (comparing the lack of remedies in partnership law to the lack of remedies in domestic- relations law); Katherine Silbaugh, Turning Labor into Love: Housework and the Law, 91 NW. U. L. REV. 1, 29 (1996) (discussing "the traditional argument that marital obligations cannot be consideration for a contract").
19. See Saul Levmore, Love It or Leave It: Property Rules, Liability Rules, and Exclusivity of Remedies in Partnership and Marriage, LAW & CONTEMP. PROBS., Spring 1995, at 221, 225-26 (comparing the lack of remedies in partnership law to the lack of remedies in domestic- relations law); Katherine Silbaugh, Turning Labor into Love: Housework and the Law, 91 NW. U. L. REV. 1, 29 (1996) (discussing "the traditional argument that marital obligations cannot be consideration for a contract").
20. "Grounds for dissolution" and "grounds for divorce" are used in this Article interchangeably.
21. Before 1967, several states did allow divorce without a showing of fault if the couple had been living "separate and apart" for a period of time. Divorce on this ground without mutual consent was risky because separation without agreement could have been found to be desertion. No state allowed one spouse to divorce the other against his or her wishes without proving fault on the part of the spouse wishing to continue the marriage. Separation for cause, without divorce, has been available for a long time. According to Blackstone: Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 428 (photo. reprint 1979) (1765).
22. According to Elizabeth Schoenfeld, "[o]n September 5, 1969, with a stroke of his pen, California governor Ronald Reagan wiped out the moral basis for marriage in America." Elizabeth Schoenfeld, Drumbeats for Divorce Reform, POL'Y REV., May-June 1996, at 8, 8. Within five years, 44 other states had followed with laws allowing courts to grant divorces sought unilaterally on the ground of "irreconcilable differences" or "irretrievable breakdown." See id. For a brief history of the development of no-fault, see SCHNEIDER & BRINIG, supra note 2, at 71-94.
23. "Unilateral" divorce includes four kinds of situations: (1) divorce against the wishes of one spouse based on the fault of that spouse, (2) divorce against the wishes of one spouse not based on any fault by that spouse, (3) (rarely) divorce requested by one spouse where the other spouse is unavailable and his or her preference is unknown, and (4) divorce sought by one party where the other party does not contest the divorce. Cases in the last category are similar to bilateral (or mutual) divorces, in that they are not contested. A huge number of cases are uncontested.
24. "No-fault" divorce refers in this Article to divorce that parties may obtain without a showing of fault. The reader should keep in mind, however, that fault still plays a role in the consequences of divorce in some states. A pure "no-fault divorce" state would neither require nor allow the parties to show fault in any part of a divorce proceeding.
25. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 108 (1987); HARRY D. KRAUSE, FAMILY LAW IN A NUTSHELL 339 (2d ed. 1986); Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data, 88 AM. ECON. REV. (forthcoming 1998) (Jan. 1997 manuscript at tbl.1, on file with authors) (listing five states which do not allow unilateral, no-fault divorce: Arkansas, Delaware, Mississippi, New York, and Tennessee); Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical Analysis of Discretionary Decisionmaking, 74 N.C. L. REV. 401, 420 n.64 (1996) ("Only three states . . . restrict no-fault divorce to cases involving spousal agreement.") (citing MISS. CODE ANN. § 93-5-2(1) (1994); N.Y. DOM. REL. LAW § 170(6) (McKinney 1988); TENN. CODE ANN. § 36-4-101(12) (1991) (requiring separation agreement for couples with minor children)); Scott, supra note 3, at 17 n.23 (stating that only two states require consent of both spouses to a no-fault divorce). Unfortunately, tables categorizing divorce grounds sometimes fail to identify states such as Virginia that do not allow unilateral, no-fault divorce. See Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Of Welfare Reform, Child Support, and Relocation, 30 FAM. L.Q. 765, 807 tbl.4 (1997). It is stunning that the Family Law Quarterly summary table ignores the important difference between unilateral and mutual no-fault divorce.
26. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 108 (1987); HARRY D. KRAUSE, FAMILY LAW IN A NUTSHELL 339 (2d ed. 1986); Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data, 88 AM. ECON. REV. (forthcoming 1998) (Jan. 1997 manuscript at tbl.1, on file with authors) (listing five states which do not allow unilateral, no-fault divorce: Arkansas, Delaware, Mississippi, New York, and Tennessee); Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical Analysis of Discretionary Decisionmaking, 74 N.C. L. REV. 401, 420 n.64 (1996) ("Only three states . . . restrict no-fault divorce to cases involving spousal agreement.") (citing MISS. CODE ANN. § 93-5-2(1) (1994); N.Y. DOM. REL. LAW § 170(6) (McKinney 1988); TENN. CODE ANN. § 36-4-101(12) (1991) (requiring separation agreement for couples with minor children)); Scott, supra note 3, at 17 n.23 (stating that only two states require consent of both spouses to a no-fault divorce). Unfortunately, tables categorizing divorce grounds sometimes fail to identify states such as Virginia that do not allow unilateral, no-fault divorce. See Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Of Welfare Reform, Child Support, and Relocation, 30 FAM. L.Q. 765, 807 tbl.4 (1997). It is stunning that the Family Law Quarterly summary table ignores the important difference between unilateral and mutual no-fault divorce.
27. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 108 (1987); HARRY D. KRAUSE, FAMILY LAW IN A NUTSHELL 339 (2d ed. 1986); Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data, 88 AM. ECON. REV. (forthcoming 1998) (Jan. 1997 manuscript at tbl.1, on file with authors) (listing five states which do not allow unilateral, no-fault divorce: Arkansas, Delaware, Mississippi, New York, and Tennessee); Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical Analysis of Discretionary Decisionmaking, 74 N.C. L. REV. 401, 420 n.64 (1996) ("Only three states . . . restrict no-fault divorce to cases involving spousal agreement.") (citing MISS. CODE ANN. § 93-5-2(1) (1994); N.Y. DOM. REL. LAW § 170(6) (McKinney 1988); TENN. CODE ANN. § 36-4-101(12) (1991) (requiring separation agreement for couples with minor children)); Scott, supra note 3, at 17 n.23 (stating that only two states require consent of both spouses to a no-fault divorce). Unfortunately, tables categorizing divorce grounds sometimes fail to identify states such as Virginia that do not allow unilateral, no-fault divorce. See Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Of Welfare Reform, Child Support, and Relocation, 30 FAM. L.Q. 765, 807 tbl.4 (1997). It is stunning that the Family Law Quarterly summary table ignores the important difference between unilateral and mutual no-fault divorce.
28. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 108 (1987); HARRY D. KRAUSE, FAMILY LAW IN A NUTSHELL 339 (2d ed. 1986); Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data, 88 AM. ECON. REV. (forthcoming 1998) (Jan. 1997 manuscript at tbl.1, on file with authors) (listing five states which do not allow unilateral, no-fault divorce: Arkansas, Delaware, Mississippi, New York, and Tennessee); Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical Analysis of Discretionary Decisionmaking, 74 N.C. L. REV. 401, 420 n.64 (1996) ("Only three states . . . restrict no-fault divorce to cases involving spousal agreement.") (citing MISS. CODE ANN. § 93-5-2(1) (1994); N.Y. DOM. REL. LAW § 170(6) (McKinney 1988); TENN. CODE ANN. § 36-4-101(12) (1991) (requiring separation agreement for couples with minor children)); Scott, supra note 3, at 17 n.23 (stating that only two states require consent of both spouses to a no-fault divorce). Unfortunately, tables categorizing divorce grounds sometimes fail to identify states such as Virginia that do not allow unilateral, no-fault divorce. See Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Of Welfare Reform, Child Support, and Relocation, 30 FAM. L.Q. 765, 807 tbl.4 (1997). It is stunning that the Family Law Quarterly summary table ignores the important difference between unilateral and mutual no-fault divorce.
29. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 108 (1987); HARRY D. KRAUSE, FAMILY LAW IN A NUTSHELL 339 (2d ed. 1986); Leora Friedberg, Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data, 88 AM. ECON. REV. (forthcoming 1998) (Jan. 1997 manuscript at tbl.1, on file with authors) (listing five states which do not allow unilateral, no-fault divorce: Arkansas, Delaware, Mississippi, New York, and Tennessee); Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical Analysis of Discretionary Decisionmaking, 74 N.C. L. REV. 401, 420 n.64 (1996) ("Only three states . . . restrict no-fault divorce to cases involving spousal agreement.") (citing MISS. CODE ANN. § 93-5-2(1) (1994); N.Y. DOM. REL. LAW § 170(6) (McKinney 1988); TENN. CODE ANN. § 36-4-101(12) (1991) (requiring separation agreement for couples with minor children)); Scott, supra note 3, at 17 n.23 (stating that only two states require consent of both spouses to a no-fault divorce). Unfortunately, tables categorizing divorce grounds sometimes fail to identify states such as Virginia that do not allow unilateral, no-fault divorce. See Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law: Of Welfare Reform, Child Support, and Relocation, 30 FAM. L.Q. 765, 807 tbl.4 (1997). It is stunning that the Family Law Quarterly summary table ignores the important difference between unilateral and mutual no-fault divorce.
30. In writing Mandatory Planning for Divorce, Stake presumed that the reform allowing unilateral divorce would not soon be reversed. See Jeffrey Evans Stake, Mandatory Planning for Divorce, 45 VAND. L. REV. 397, 409-10 (1992). In writing their casebook, Schneider and Brinig said "Is no-fault divorce desirable? No one advocates returning to the old regime . . . ." SCHNEIDER & BRINIG, supra note 2, at 94.
31. Some of the recent reforms in Britain have followed this pattern. In 1996, the first major change in marriage law since 1969 in England and Wales required mandatory "cooling off" periods, delaying most divorces twelve to eighteen months instead of the earlier seven-month average. But in other ways, Britain is out of phase. As in earlier American reforms, the role of fault has been sharply diminished. See Robin Knight, In Great Britain, an Easier Out, U.S. NEWS & WORLD REP., Sept. 30, 1996, at 60.
32. See Hanna Rosin, Separation Anxiety: The Movement to Save Marriage, NEW REPUBLIC, May 6, 1996, at 14, 14. In one state, Louisiana, the bill has been signed into law. See infra note 169.
33. "Terms of dissolution" and "terms of divorce" are used in this Article interchangeably.
34. See Smith v. Smith, 547 N.E.2d 297, 300 (Ind. Ct. App. 1989) (stating in dictum that the "trial court may order spousal maintenance only after a showing of incapacitation"). However, divorcing spouses "crafting their own agreements may provide for maintenance without such a showing." Id. "[W]hile a divorce court is prohibited from fashioning an award of spousal maintenance containing a provision that the award is not subject to modification, divorcing couples are perfectly free to craft their own agreements - as did the parties in the present case - for an award of maintenance that is not subject to modification." Roberts v. Roberts, 644 N.E.2d 173, 175 (Ind. Ct. App. 1994) (alteration added) (quoting Bowman v. Bowman, 567 N.E.2d 828, 830 (Ind. Ct. App. 1991)). Thus, divorcing spouses have more flexibility in crafting their property settlement by mutual agreement than do divorce courts by commands.
35. This assumption is suspect. If men's filings for divorce increased more than women's, that would suggest that more men desired to leave a non-faulty wife than vice versa, and that the new law benefited more men than women.
36. This assumption is also suspect in that courts (dividing assets "equitably") often look primarily to the financial contributions of each spouse, undervaluing nonmonetary contributions by women.
37. See PAULA ENGLAND & GEORGE FARKAS, HOUSEHOLD EMPLOYMENT AND GENDER 163-64 (1986) (describing the sex gap in wages); VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 44-45 (1988) (stating that women work fewer paid hours than do men); MILTON REGAN, FAMILY LAW AND THE PURSUIT OF INTIMACY 155 (1993) (stating that "women are more likely than men to make career sacrifices in order to meet family responsibilities, and therefore often are economically dependent on men") (citing FUCHS, supra, at 140).
38. See PAULA ENGLAND & GEORGE FARKAS, HOUSEHOLD EMPLOYMENT AND GENDER 163-64 (1986) (describing the sex gap in wages); VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 44-45 (1988) (stating that women work fewer paid hours than do men); MILTON REGAN, FAMILY LAW AND THE PURSUIT OF INTIMACY 155 (1993) (stating that "women are more likely than men to make career sacrifices in order to meet family responsibilities, and therefore often are economically dependent on men") (citing FUCHS, supra, at 140).
39. See PAULA ENGLAND & GEORGE FARKAS, HOUSEHOLD EMPLOYMENT AND GENDER 163-64 (1986) (describing the sex gap in wages); VICTOR R. FUCHS, WOMEN'S QUEST FOR ECONOMIC EQUALITY 44-45 (1988) (stating that women work fewer paid hours than do men); MILTON REGAN, FAMILY LAW AND THE PURSUIT OF INTIMACY 155 (1993) (stating that "women are more likely than men to make career sacrifices in order to meet family responsibilities, and therefore often are economically dependent on men") (citing FUCHS, supra, at 140).
40. This proposition might be tested empirically if it could be determined whether men became more willing to marry after divorce reform. If they did become more willing to marry, that would support the claim that reform reduced the ex ante costs of marriage for them. Overall marriage rates have diminished, however. See Margaret F. Brinig & Steven M. Crafton, Marriage and Opportunism, 23 J. LEGAL STUD. 869, 884-85 (1994) (discussing the evidence of fewer women getting married - 91 per 1000 in 1988 compared with 147.2 per 1000 in 1967 - and the woman's lack of bargaining power in marriage).
41. This legislative wealth transfer was challenged in litigation, without success. See In re Marriage of Franks, 542 P.2d 845, 850 (Colo. 1975) (en banc) (rejecting argument that the no-fault divorce grounds in the Uniform Dissolution of Marriage Act violated the contract clause of the state constitution); see also In re Marriage of Walton, 104 Cal. Rptr. 472, 475-76 (Ct. App. 1972) (holding that a no-fault divorce was not an impairment of wife's contract). Given the current scope of the Takings Clause, perhaps that should have instead been the basis of the challenge. See Dolan v. Tigard, 512 U.S. 374, 391 (1994) (stating that the burden is on the government to make findings of fact showing rough proportionality in exaction cases); First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318 (1987) (holding that a deprivation of land-use rights is no less a taking simply because it is temporary); Hodel v. Irving, 481 U.S. 704, 717-18 (1987) (determining that it is a taking to stop a person from passing assets by will and by intestate succession even if person still has a right to transfer assets at death by settling a trust); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436-37 (1982) (stating that no physical invasion is too small to be a taking).
42. Loving v. Virginia, 388 U.S. 1, 17 (1967); see also Zablocki v. Redhail, 434 U.S. 374 (1978) (holding that the state cannot prevent marriage by someone unable to meet his obligation to support his existing children).
43. See Boddie v. Connecticut, 401 U.S. 371 (1971).
44. The new legal regime also created an incentive to look more carefully for a spouse that would stay married, if that spouse's income was important.
45. See generally Brinig & Crafton, supra note 25, at 883, 887; Lloyd Cohen, Marriage, Divorce, and Quasi Rents; or "I Gave Him the Best Years of My Life", 16 J. LEGAL STUD. 267, 288-89 (1989).
46. The participation rate for females aged 25-44 was 47.5% in 1970, see U.S. BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES, COLONIAL TIMES TO 1970, at 132 (1970), while that for females aged 25-34 was 74.9% in 1995, see U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES, 1996, at 393 tbl.615 (1996). For an economic analysis of women's work levels, see Allen Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. (forthcoming 1998) (attributing some work to fear of divorce), and ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? (1992).
47. The participation rate for females aged 25-44 was 47.5% in 1970, see U.S. BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES, COLONIAL TIMES TO 1970, at 132 (1970), while that for females aged 25-34 was 74.9% in 1995, see U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES, 1996, at 393 tbl.615 (1996). For an economic analysis of women's work levels, see Allen Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. (forthcoming 1998) (attributing some work to fear of divorce), and ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? (1992).
48. The participation rate for females aged 25-44 was 47.5% in 1970, see U.S. BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES, COLONIAL TIMES TO 1970, at 132 (1970), while that for females aged 25-34 was 74.9% in 1995, see U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES, 1996, at 393 tbl.615 (1996). For an economic analysis of women's work levels, see Allen Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. (forthcoming 1998) (attributing some work to fear of divorce), and ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? (1992).
49. The participation rate for females aged 25-44 was 47.5% in 1970, see U.S. BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES, COLONIAL TIMES TO 1970, at 132 (1970), while that for females aged 25-34 was 74.9% in 1995, see U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES, 1996, at 393 tbl.615 (1996). For an economic analysis of women's work levels, see Allen Parkman, Why Are Married Women Working So Hard?, 18 INT'L REV. L. & ECON. (forthcoming 1998) (attributing some work to fear of divorce), and ALLEN M. PARKMAN, NO-FAULT DIVORCE: WHAT WENT WRONG? (1992).
50. Among the direct beneficiaries of the change in law were legislators who voted for it. The chairman of the California Senate Judiciary Committee, James Hayes, was divorced for fault in 1966 by his wife of 25 years and ordered to pay alimony and child support. He oversaw the drafting of the statute and its accompanying report in 1969, and used it himself in 1972 to end his child support and cut his alimony. In 1973, he managed to get alimony further reduced, and the judge told Mrs. Hayes to go out and get a job. If she had been the politician, perhaps history would be different. See William A. Galston, Divorce American Style, PUB. INTEREST, Summer 1996, at 12, 12-13.
51. The decrease in marriage rates after unilateral, no-fault divorce was adopted suggests that the new rules make marriage less attractive. See generally Elisabeth M. Landes, The Economics of Alimony, 7 J. LEGAL STUD. 35 (1978) (discussing optimal specialization).
52. Of course, many cohabiting couples now have contracts, especially since Marvin v. Marvin, 557 P.2d 106, 122 (Cal. 1976) (upholding oral contract between unmarried cohabiting persons with respect to property division).
53. See discussion infra note 41.
54. The law is making such private agreements easier. In 1983, the National Conference of Commissioners on Uniform State Laws approved the Uniform Premarital Agreement Act. See UNIF. PREMARITAL AGREEMENT ACT (1984). For a discussion with citations to statutes and cases in most states, see Rider v. Rider, 669 N.E.2d 160, 163 n.3 (Ind. 1996).
55. See DeLorean v. DeLorean, 511 A.2d 1257 (N.J. Super. Ct. Ch. Div. 1986) (enforcing an antenuptial contract calling for substantially uneven division of assets at divorce under California law). In Britain, however, antenuptial agreements, even for the terms of dissolution, are not enforceable in court. English judges do take an agreement into account as one factor, but take it less seriously as the agreement ages. The Law Society has recently proposed that some agreements be made binding. See With This Contract I Thee Wed, MGMT. TODAY, Aug. 1996, at 78.
56. A large body of literature discusses the extent to which antenuptial or postnuptial agreements are valid. See Gregg Temple, Freedom of Contract and Intimate Relationships, 8 HARV. J.L. & PUB. POL'Y 121 (1985); Judith T. Younger, Perspectives on Antenuptial Agreements, 40 RUTGERS L. REV. 1059 (1988); see also sources cited supra note 3.
57. A large body of literature discusses the extent to which antenuptial or postnuptial agreements are valid. See Gregg Temple, Freedom of Contract and Intimate Relationships, 8 HARV. J.L. & PUB. POL'Y 121 (1985); Judith T. Younger, Perspectives on Antenuptial Agreements, 40 RUTGERS L. REV. 1059 (1988); see also sources cited supra note 3.
58. There appears to be a systematic bias in people's perceptions; fewer people expect to get divorced than do. For discussion of the psychology of planning for divorce see Lynn A. Baker, Promulgating the Marriage Contract, 23 U. MICH. J.L. REFORM 217 (1990), and 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 (1993). One of us has suggested that a rational decisionmaker will enter marriage expecting to be disappointed. See Eric Rasmusen, Managerial Conservatism and Rational Information Acquisition, 1 J. ECON. & MGMT. STRATEGY 175 (1992).
59. There appears to be a systematic bias in people's perceptions; fewer people expect to get divorced than do. For discussion of the psychology of planning for divorce see Lynn A. Baker, Promulgating the Marriage Contract, 23 U. MICH. J.L. REFORM 217 (1990), and 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 (1993). One of us has suggested that a rational decisionmaker will enter marriage expecting to be disappointed. See Eric Rasmusen, Managerial Conservatism and Rational Information Acquisition, 1 J. ECON. & MGMT. STRATEGY 175 (1992).
60. There appears to be a systematic bias in people's perceptions; fewer people expect to get divorced than do. For discussion of the psychology of planning for divorce see Lynn A. Baker, Promulgating the Marriage Contract, 23 U. MICH. J.L. REFORM 217 (1990), and 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 (1993). One of us has suggested that a rational decisionmaker will enter marriage expecting to be disappointed. See Eric Rasmusen, Managerial Conservatism and Rational Information Acquisition, 1 J. ECON. & MGMT. STRATEGY 175 (1992).
61. See Stake, supra note 17. Contracts regarding divorce are more common among the wealthy and people marrying for a second time. The fact that wealthy persons execute premarital contracts suggests that contracts are desirable, but that the costs of contracting outweigh the advantages unless someone has the means to overcome the costs. Society might improve the lives of those of lesser means by reducing the transaction costs.
62. This is one advantage of having no-fault be the default grounds for divorce. If the default were more restrictive, someone wishing to privately enlarge the default grounds for divorce would have a hard time doing so because of the signaling problem. With a no-fault default, someone wishing to constrict the grounds can do so without sending a message that he anticipates desiring a divorce.
63. See Towles v. Towles, 182 S.E.2d 53, 55 (S.C. 1971) (holding that an agreement violated public policy by precluding enforcement of a right granted by the state). Courts have rarely ruled on the validity of agreements restricting the grounds of divorce. One exception is Massar v. Massar, 652 A.2d 219 (N.J. Super. Ct. App. Div. 1995): In an agreement signed April 30, 1993, Mr. Massar agreed to vacate the marital home, and Mrs. Massar agreed not to seek termination of the marriage for any reason other than eighteen months continuous separation. Pursuant to this agreement, Mr. Massar moved out of the marital home. However, contrary to the agreement, on October 1, 1993, Mrs. Massar filed a complaint for divorce on the grounds of extreme cruelty. Mr. Massar filed a motion to dismiss the complaint and to enforce the prenuptial agreement. Id. at 221. There was no duress, and Mrs. Massar had her own lawyer. The court, therefore, enforced the agreement, though with language making it clear that enforcement would be decided case by case. See id. at 221-23.
64. The UPAA does not specifically list the grounds of divorce as one of the things that can be regulated by contract The UPAA allows agreements to regulate "any other matter, including [the parties'] personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty." UNIF. PREMARITAL AGREEMENT ACT § 3(a)(8) (1984). It seems likely, however, that a court would find a contract changing the grounds for divorce to be in conflict with the public policy expressed in the relevant statute setting out the grounds for divorce. But see Massar, 652 A.2d at 221-23.
65. See Lenore J. Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 CAL. L. REV. 1169 (1974). For a book-length treatment, see LENORE J. WEITZMAN, THE MARRIAGE CONTRACT (1981).
66. See Lenore J. Weitzman, Legal Regulation of Marriage: Tradition and Change, 62 CAL. L. REV. 1169 (1974). For a book-length treatment, see LENORE J. WEITZMAN, THE MARRIAGE CONTRACT (1981).
67. As Carol Weisbrod has noted, contracts may be particularly important in times of social uncertainty. See Carol Weisbrod, The Way We Live Now: A Discussion of Contracts and Domestic Arrangements, 1994 UTAH L. REV. 777, 782-83.
68. See Stephen Goode, The Christian Soldiers March on Washington, INSIGHT ON NEWS, Oct. 27, 1997, at 48.
69. One study found that marital dissolution among white males is three times more common for those who never attend church than for those who attend at least twice a month. Protestants and Catholics as a group have higher divorce rates than Jews, but within each faith, the decisive issue is the degree of religious commitment. Part of the reason, researchers suggest, is that "'those who actively participate in their church have a wide network of friends and associates to turn to for help in times of distress.'" Elizabeth Schoenfeld, Marriage Menders, POL'Y REV., Mar.-Apr. 1996, at 12, 13 (quoting DAVID B. LARSON ET AL., THE COSTLY CONSEQUENCES OF DIVORCE (1995)). By contrast, George Barna found in his sample of 3000 Americans that 27% of born-again Christians had been divorced, compared to 23% of non-Christians. (This result is not corrected for other variables such as age or income level.) See Maja Beckstrom, Religion by the Numbers, NEWS & OBSERVER (Raleigh, N.C.), Aug. 23, 1996, at E1, available in 1996 WL 2893815.
70. One study found that marital dissolution among white males is three times more common for those who never attend church than for those who attend at least twice a month. Protestants and Catholics as a group have higher divorce rates than Jews, but within each faith, the decisive issue is the degree of religious commitment. Part of the reason, researchers suggest, is that "'those who actively participate in their church have a wide network of friends and associates to turn to for help in times of distress.'" Elizabeth Schoenfeld, Marriage Menders, POL'Y REV., Mar.-Apr. 1996, at 12, 13 (quoting DAVID B. LARSON ET AL., THE COSTLY CONSEQUENCES OF DIVORCE (1995)). By contrast, George Barna found in his sample of 3000 Americans that 27% of born-again Christians had been divorced, compared to 23% of non-Christians. (This result is not corrected for other variables such as age or income level.) See Maja Beckstrom, Religion by the Numbers, NEWS & OBSERVER (Raleigh, N.C.), Aug. 23, 1996, at E1, available in 1996 WL 2893815.
71. One study found that marital dissolution among white males is three times more common for those who never attend church than for those who attend at least twice a month. Protestants and Catholics as a group have higher divorce rates than Jews, but within each faith, the decisive issue is the degree of religious commitment. Part of the reason, researchers suggest, is that "'those who actively participate in their church have a wide network of friends and associates to turn to for help in times of distress.'" Elizabeth Schoenfeld, Marriage Menders, POL'Y REV., Mar.-Apr. 1996, at 12, 13 (quoting DAVID B. LARSON ET AL., THE COSTLY CONSEQUENCES OF DIVORCE (1995)). By contrast, George Barna found in his sample of 3000 Americans that 27% of born-again Christians had been divorced, compared to 23% of non-Christians. (This result is not corrected for other variables such as age or income level.) See Maja Beckstrom, Religion by the Numbers, NEWS & OBSERVER (Raleigh, N.C.), Aug. 23, 1996, at E1, available in 1996 WL 2893815.
72. See Beckstrom, supra note 47, at E1. Most churches in Modesto, California have voluntarily agreed to require couples wishing to marry in them to go through personality testing and as many as 10 two-hour counseling sessions. About 10% of the couples break their engagements, but in 10 years of the program the number of divorces fell 7% while the city population rose 40%. See Rosin, supra note 19, at 14.
73. JOHN RAWLS, A THEORY OF JUSTICE § 24, at 136-38 (1971). See generally id. § 24, at 136-42.
74. Unlike Mr. Hayes, discussed supra note 32. See Galston, supra note 32, at 12-13.
75. See laws discussed infra notes 168-69.
76. This authorization does not imply that couples should or could specify all terms of a marriage. For a discussion of why even commercial contracts are incomplete, see Eric Rasmusen, A Theory of Negotiation, Not Bargaining (unpublished manuscript in progress), available at 〈http:\\php.indiana.edu/∼erasmuse/unpublished/negot.pdf〉.
77. See supra note 3.
78. The idea that couples should be allowed to make divorce more difficult is not new. Theodore Haas proposed in 1988 a "Model Agreement" that barred divorce except when traditional fault grounds could be shown, and burdened divorce by providing that the spouse obtaining a no-fault divorce would suffer an unfavorable division of family property, income, and child custody. He argued that his "Model Agreement" should be enforceable as a matter of existing contract law. See Haas, supra note 3, at 894.
79. See discussion infra pages 495-99.
80. U.S. CONST, amends. I-X.
81. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
82. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
83. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
84. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
85. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to
86. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
87. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
88. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
89. "'There has been a huge sea change [against no-fault] in the last six months.'" John Leland, Tightening the Knot, NEWSWEEK, Feb. 19, 1996, at 72, 72 (alteration in original) (quoting William Galston). A recent poll conducted by the Family Research Council found that 55% of Americans favor making it harder to leave a marriage when one partner wants to stay together. See id. There is also support in foreign law for a fault requirement in unilateral divorce. In Japan, a contested divorce requires proof of fault and must be obtained in the district court rather than family court. See Taimie L. Bryant, Marital Dissolution in Japan: Legal Obstacles and Their Impact, 17 LAW JAPAN 73, 73-78 (1984). One ground for unilateral divorce is "'grave cause making marital continuity difficult,'" but judges are very reluctant to find it Id. at 75 (quoting MINPǑ, art 770(1)). For example, a family court refused a husband's request for a divorce on this ground even though his wife had returned to her parents eight years previously. See id. However, physical abuse and criminal imprisonment should qualify. See id. By contrast, mutual divorce in Japan is easy, requiring, at its simplest, merely registration in a government office. See id. 58. While the discussion below assumes the context of traditional constraints, many of the points apply equally to more creative constraints on divorce. One such proposal that could be implemented through private agreement is Judith Younger's marriage for minor children. See Judith T. Younger, Marital Regimes: A Story of Compromise and Demoralization, Together with Criticism and Suggestions for Reform, 67 CORNELL L. REV. 45, 90 (1981) [hereinafter Younger, Marital Regimes]; Judith T. Younger, Marriage, Divorce, and the Family: A Cautionary Tale, 21 HOFSTRA L. REV. 1367, 1380 (1993) [hereinafter Younger, Marriage, Divorce, and the Family]. Another proposal that might be implemented through private agreement rather than being forced on all couples is Irving Kristol's proposal that unilateral, no-fault divorce be made available only to women. See SHIRLEY P. BURGGRAF, THE FEMININE ECONOMY AND ECONOMIC MAN 136 (1997) (discussing Kristol's proposal); Irving Kristol, Sex Trumps Gender, WALL ST. J., Mar. 6, 1996, at A20. The constitutionality of such a regime, which has been questioned, see Anne Alstott, Tax Policy and Feminism: Competing Goals and Institutional Choices, 96 COLUM. L. REV. 2001, 2042 (1996), would be less problematic if created by contract rather than statute. (Imagine the response to a man's offering such terms.)
90. Lloyd Cohen notes that it is usually the wife who performs more early in marriage, and who is thus most vulnerable to nonperformance. See Cohen, supra note 30. For another view of marriage in terms of contract law, see Margaret F. Brinig & June Carbone, The Reliance Interest in Marriage and Divorce, 62 TUL. L. REV, 855 (1988). Lenore Weitzman uses a nice example of a female dancer marrying a medical student See WEITZMAN, supra note 44, at 295-99. If she delays her career to put him through school, she sacrifices that career. For analogies to the Uniform Commercial Code, see Weisbrod, supra note 45. For a view in terms of the economic idea of opportunism, see Brinig & Crafton, supra note 25.
91. This difference is slow to disappear. See ENGLAND & FARKAS, supra note 24, at 55 ("[M]en typically make fewer relationship-specific investments than women, accumulating instead resources which are as useful outside as within their current relationship.").
92. Note that the same problem occurs when employers want their employees to invest time in creating firm-specific talents.
93. It is, of course, equally selfish for men and women.
94. See GARY S. BECKER, A TREATISE OF THE FAMILY 30 (2d ed. 1991); Gary S. Becker, On the Allocation of Time, 75 ECON. J. 492, 512 (1991).
95. See GARY S. BECKER, A TREATISE OF THE FAMILY 30 (2d ed. 1991); Gary S. Becker, On the Allocation of Time, 75 ECON. J. 492, 512 (1991).
96. The probability that neither violinist succeeds is (.20) * (.20) = .04.
97. If the successful one wants a divorce, it would seem that an award to the other of the amount of lost career opportunities would not be adequate.
98. PROTESTANT EPISCOPAL CHURCH, The Form of Solemnization of Matrimony, in THE BOOK OF COMMON PRAYER 300, 301 (1945).
99. According to the data in an unpublished paper by Leora Friedberg, unilateral divorce raised the national divorce rate by 7% out of the approximately 42% total increase in divorce rate between 1970 and 1985. She used a panel of state-level divorce rates and controlled for year and state effects and state trends. See Friedberg, supra note 16, at 3. Note that divorces in foreign jurisdictions are ignored in this study. See infra Part VI.B.; see also Margaret F. Brinig & F.H. Buckley, No-Fault Laws and At-Fault People, 18 INT'L REV. L. & ECON. (forthcoming 1998) (finding that divorce rates from 1980 to 1991 were correlated with lower barriers to exit).
100. See. e.g., Harrington v. Harrington, 206 S.E.2d 742 (N.C. Ct. App.), rev'd, 210 S.E.2d 190 (N.C. 1974). "The preservation of a marriage which is only an empty shell can be of no benefit to the husband; it can be of no benefit to the wife; and it certainly can be of no benefit to society." Id. at 745. This ignores the possibility of a benefit in influencing the behavior of other husbands and wives. See generally Brinig & Buckley, supra note 67.
101. The Roman Catholic position is that marriage is status, not contract, because it is divinely ordained rather than decided by the parties. "[T]he nature of matrimony is entirely independent of the free will of man, so that if one has once contracted matrimony he is thereby subject to its divinely made laws and its essential properties." Pope Pius XI, Casti Connubii (Encyclical 208, Dec. 31, 1930) ¶ 6, reprinted in THE PAPAL ENCYCLICALS, 1903-1939, at 391, 392 (Claudia Carlen ed., 1981).
102. The Roman Catholic position is that marriage is status, not contract, because it is divinely ordained rather than decided by the parties. "[T]he nature of matrimony is entirely independent of the free will of man, so that if one has once contracted matrimony he is thereby subject to its divinely made laws and its essential properties." Pope Pius XI, Casti Connubii (Encyclical 208, Dec. 31, 1930) ¶ 6, reprinted in THE PAPAL ENCYCLICALS, 1903-1939, at 391, 392 (Claudia Carlen ed., 1981).
103. See Ramon v. Roman, 34 N.Y.S.2d 100 (Fam. Ct. 1942), for a court's discussion of the plight of a Catholic in a society that allows civil divorce.
104. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
105. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
106. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
107. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
108. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
109. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
110. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
111. Judith Younger has advocated what she calls a "marriage for minor children," that could not be easily broken. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; see also E. MAVIS HETHERINGTON ET AL., EFFECTS OF DIVORCE ON PARENTS AND CHILDREN IN NONTRADITIONAL FAMILIES 233 (M.E. Lamb ed., 1982); JUDITH S. WALLERSTEIN, SURVIVING THE BREAKUP 10 (1980) (stating that the majority of children preferred the unhappy marriage to divorce); JUDITH S. WALLERSTEIN & SANDRA BLAKESLEE, SECOND CHANCES (1989); David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984); E. Mavis Hetherington et al., Long-Term Effects of Divorce and Remarriage on the Adjustment of Children, 24 J. AM. ACAD. CHILD PSYCHIATRY 518 (1985); Scott, supra note 3, at 25-37 (summarizing research on the effects of divorce on children); Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991).
112. For a more detailed survey of the drawbacks of unilateral, no-fault divorce, see Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. REV. 79.
113. In this Article we do not argue that a traditional marriage should be mandatory. We have said many good things about it, but only to establish that some people could rationally choose it.
114. "The heart of man delights in liberty: The very image of constraint is grievous to it: When you would confine it by violence, to what would otherwise have been its choice, the inclination immediately changes, and desire is turned into aversion." DAVID HUME, Of Polygamy and Divorces, in ESSAYS, MORAL, POLITICAL, AND LITERARY 181, 187 (Eugene F. Miller ed., Liberty Classics 1987) (1742). But Hume counters his own argument. "[T]he heart of man naturally submits to necessity, and soon loses an inclination, when there appears an absolute impossibility of gratifying it." Id. at 188.
115. In Hume's words: [N]othing is more dangerous than to unite two persons so closely in all their interests and concerns, as man and wife, without rendering the union entire and total. The least possibility of a separate interest must be the source of endless quarrels and suspicions. The wife, not secure of her establishment, will still be driving some separate end or project; and the husband's selfishness, being accompanied with more power, may be still more dangerous. Id. at 189. Elizabeth Scott poses an example of a premarital contract providing that divorce can only follow a two-year waiting period after notice by one spouse of intent to end the marriage. She says such a condition creates a barrier to exit, making divorce a more costly choice compared to continued marriage. This provides an opportunity, for example, for a wife to determine whether her long-term preference for a lasting marriage outweighs conflicting temporarily dominant short-term preferences. See Elizabeth S. Scott, Rehabilitating Liberalism in Modern Divorce Law, 1994 UTAH L. REV. 687, 727-29. The "cost" imposed by this agreement is an interesting one. The same "cost" is paid by staying in the marriage. Perhaps the waiting period is more a reduction of the benefits of divorce than an increase to the costs of divorce. If I exchange my house for cash, my compensation is less if the buyer waits two years to pay. In physics terms, the waiting period is a damping device that prevents quick action but does not prevent reaching an ultimate goal.
116. Martha Fineman, arguing for the abolition of the legal category of marriage, takes the position that the ordinary rules of contract, tort, and criminal law should apply to couples. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 226-36 (1995).
117. In some states, divorce rates increased after no-fault was introduced. See Friedberg, supra note 16; Thomas Marvell, Divorce Rates and the Fault Requ irement, 23 L. & SOC'Y REV. 543, 557-63 (1989).
118. Rosin, supra note 19, at 16.
119. See supra notes 58, 71.
120. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; cf. Linda J. Lacey, Mandatory Marriage "For the Sake of the Children": A Feminist Reply to Elizabeth Scott, 66 TUL. L. REV. 1435 (1992).
121. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; cf. Linda J. Lacey, Mandatory Marriage "For the Sake of the Children": A Feminist Reply to Elizabeth Scott, 66 TUL. L. REV. 1435 (1992).
122. See Younger, Marital Regimes, supra note 58, at 90; Younger, Marriage, Divorce, and the Family, supra note 58, at 1380; cf. Linda J. Lacey, Mandatory Marriage "For the Sake of the Children": A Feminist Reply to Elizabeth Scott, 66 TUL. L. REV. 1435 (1992).
123. See Galston, supra note 32, at 15 (examining the measures of child performance including school performance, high-school completion, college attendance and graduation, labor-force attachment and work patterns, depression and other psychological illnesses, crime, suicide, out-of-wedlock births, and the propensity for the children themselves to become divorced); see also Douglas W. Allen & Margaret Brinig, Sex, Property Rights, and Divorce, 5 EUR. J.L. & ECON. (forthcoming 1998).
124. A New Jersey court has recognized that a blanket rule against agreements concerning grounds for divorce would be inappropriate even though some should not be honored. Accordingly, we decline to adopt a per se rule. . . . [W]e can envision many instances in which such an agreement may not be enforceable because it may serve to hide from the court actions of an abusive spouse or substance dependent spouse which may endanger the physical and emotional welfare of the other spouse and any children. Massar v. Massar, 652 A.2d 219, 222-23 (N.J. Super. Ct. App. Div. 1995). For more on Massar, see supra note 42.
125. See Wax, supra note 3 (manuscript at 6 n.12) ("Studies of financial arrangements among married couples suggest patterns of unequal control over spending, with men having greater unilateral discretion and decision-making power.") (citing Carole B. Burgoyne, Money in Marriage: How Patterns of Allocation Both Reflect and Conceal Power, 38 SOC. REV. 634, 648 (1990)); see also infra text accompanying note 120 (discussing division of marital workload).
126. For a detailed discussion of bargaining in marriage, see Wax, supra note 3.
127. "The result of contractual freedom, then, is in the first place the opening of the opportunity to use . . . resources without legal restraints as a means for the achievement of power over others." 2 WEBER, supra note 1, at 730. Contract law serves "as an intensifier of economic advantage and disadvantage." Charles L. Black, Jr., Some Notes on Law Schools in the Present Day, 79 YALE L.J. 505, 508 (1970) (emphasis in original).
128. For a discussion of the disadvantages of mediation for women, see Margaret F. Brinig, Does Mediation Systematically Disadvantage Women?, 2 WM. & MARY J. WOMEN & L. I (1995), Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991), Joshua D. Rosenberg, In Defense of Mediation, 33 ARIZ. L. REV. 467 (1991), and Wax, supra note 3 (manuscript at 53-57 nn. 137-52).
129. For a discussion of the disadvantages of mediation for women, see Margaret F. Brinig, Does Mediation Systematically Disadvantage Women?, 2 WM. & MARY J. WOMEN & L. I (1995), Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991), Joshua D. Rosenberg, In Defense of Mediation, 33 ARIZ. L. REV. 467 (1991), and Wax, supra note 3 (manuscript at 53-57 nn. 137-52).
130. For a discussion of the disadvantages of mediation for women, see Margaret F. Brinig, Does Mediation Systematically Disadvantage Women?, 2 WM. & MARY J. WOMEN & L. I (1995), Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 YALE L.J. 1545 (1991), Joshua D. Rosenberg, In Defense of Mediation, 33 ARIZ. L. REV. 467 (1991), and Wax, supra note 3 (manuscript at 53-57 nn. 137-52).
131. REGAN, supra note 24, at 149.
132. See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979).
133. See Stake, supra note 17, at 429-42. In addition, if people are more idealistic when young, or more likely to realize that one is in a better position because of luck rather than dessert, earlier bargaining might be more likely to result in equal bargains.
134. See Mnookin & Kornhauser, supra note 88, at 950.
135. Perhaps, alluding to Mnookin and Kornhauser's seminal article, see id., our Article should have been titled "Bargaining in the Shadow of Divorce: The Case of Marriage," or perhaps "Bargaining in the Shadow of Marriage: The Case of Premarital Agreements." Amy Wax takes the metaphor the other direction, writing of the shadow of divorce law as a window on the market. See Wax, supra note 3 (manuscript at 33).
136. See generally Wax, supra note 3 (concluding, inter alia, that there is no solution to the problem that men have more bargaining power in marriage than women, at least no solution that is realistic and not worse than the problem). It is important to note that this argument does not justify allowing parties to negotiate regarding the division of community property. The law in some states does protect women (and men), giving them half of the earnings during marriage. Allowing this division to be changed by premarital contract might result in a substantial reduction in the welfare of women. We cannot be certain that it would worsen women's plight, however, because it would give them an ability to bargain which could result in an efficient trade. With that bargaining chip, more men might be induced to marry and the benefit of those marriages might (if enough of those marriages were good) be positive for women. Even if no more good men marry, the marriages made might be better matches for women, the women getting the husband they really want by bargaining, and the net gains (considering what they threw into the bargain) for those women not being outweighed by the losses to the women who lose those husbands.
137. See id. (manuscript at 30-34).
138. See id. (manuscript at 43-44).
139. Id. (manuscript at 49).
140. See Massar v. Massar, 652 A.2d 219, 223 (N.J. Super. Ct. App. Div. 1995).
141. See Simeone v. Simeone, 581 A.2d 162 (Pa. 1990). The court said, "[f]urther, the reasonableness of a prenuptial bargain is not a proper subject for judicial review," and discussed why this is so in the context of long-term contracts. Id. at 166. The court upheld a prenuptial agreement signed the day before the wedding that gave the nurse bride only $25,000 in alimony from her brain-surgeon husband. See id. at 168.
142. In the words of the Supreme Court: Without a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts, for example, but we are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without state approval. Even where all substantive requirements are concededly met, we know of no instance where two consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations that go with marriage, and more fundamentally the prohibition against remarriage, without invoking the State's judicial machinery. Boddie v. Connecticut, 401 U.S. 371, 376 (1971). Without guarantees of due process, "the State's monopoly over techniques for binding conflict resolution could hardly be said to be acceptable." Id. at 375.
143. This contract could be executed before or after marriage.
144. There is some case support for this already. See Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983) (upholding agreement of Jewish couple to recognize authority of the Beth Din regarding divorce). Avitzur is discussed infra note 162. See also Aziz v. Aziz, 488 N.Y.S.2d 123 (App. Div. 1985). Aziz is discussed infra note 158.
145. At the time of authorizing agreements on the grounds for divorce, legislatures should specify minimal grounds for divorce that are beyond private variation.
146. "Liberal" is mostly Stake and "Conservative" is mostly Rasmusen, but we each have worked to improve the other's unpersuasive arguments.
147. For further discussion of status and incentive efficiencies, see Jeffrey Evans Stake, Status and Incentive Effects in Judicial Decisions, 79 GEO. L.J. 1447 (1991).
148. This hardly needs a footnote, but for more analysis see generally Gary S. Becker et al., An Economic Analysis of Marital Instability, 85 J. POL. ECON. 1141 (1977).
149. Hold on there, Conservative. Paradoxically, your rules would increase the chances that the players are first-time players since there would be fewer repeat players. But first-timers are the very people who can benefit least from your rules.
150. This distinction between property and liability rules is a basic principle of law and economics. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).
151. See RESTATEMENT (SECOND) OF CONTRACTS § 89 (1979) (discussing modification of an executory contract); id. §§ 174-75 (discussing duress); E. ALLAN FARNSWORTH, CONTRACTS 271-78 (1982) (discussing the effect of duress and lack of consideration). Recent scholarship argues that sophisticated parties should be allowed to bind themselves to contracts that cannot be renegotiated, see Christine Jolls, Contracts as Bilateral Commitments: A New Perspective on Contract Modification, 26 J. LEGAL STUD. 203 (1997), but many fiancé(e)s do not qualify as sophisticated.
152. See RESTATEMENT (SECOND) OF CONTRACTS § 89 (1979) (discussing modification of an executory contract); id. §§ 174-75 (discussing duress); E. ALLAN FARNSWORTH, CONTRACTS 271-78 (1982) (discussing the effect of duress and lack of consideration). Recent scholarship argues that sophisticated parties should be allowed to bind themselves to contracts that cannot be renegotiated, see Christine Jolls, Contracts as Bilateral Commitments: A New Perspective on Contract Modification, 26 J. LEGAL STUD. 203 (1997), but many fiancé(e)s do not qualify as sophisticated.
153. Partners have the power to dissolve the partnership unilaterally despite a partnership agreement to the contrary. See UNIF. PARTNERSHIP ACT § 31(2) (1914), 6 U.L.A. 376 (1969) (amended 1994); see also Robert W. Hillman, The Dissatisfied Participant in the Solvent Business Venture: A Consideration of the Relative Permanence of Partnerships and Close Corporations, 67 MINN. L. REV. 1, 11-14 (1982). The dissolving partner need make no showing of fault by the other partner. See UNIF. PARTNERSHIP ACT § 32(1)(e)-(f), 6 U.L.A. 394. By contrast, English law prohibits unilateral termination if the agreement specifies the term, see Partnership Act, 1890, 53 & 54 Vict, ch. 39, §§ 26(1), 32(a) (Eng.), or even if the term is indefinite but dissolution is specified to be by mutual arrangement only, see Moss v. Elphick, 1 K.B. 846 (Eng. C.A. 1910)). A recent case reaffirming this principle is Walters v. Bingham, 138 NEW L.J. REP. 7 (Eng. Ch. Dec. 17, 1987). Because bigamy and adultery laws prevent persons from finding new marital "partners" and most business partners do not assume they will devise substantial assets to each other, partnership and marriage are different in essential ways. Due to these fundamental differences, marriage law ought not follow the partnership model too slavishly.
154. Section 5 of the UPAA, however, says that fresh consideration is unnecessary for modifying a premarital agreement. See UNIF. PREMARITAL AGREEMENT ACT § 5 (1984).
155. For a classic case of renegotiation under duress see Alaska Packers' Ass'n v. Domenico, 117 F. 99 (9th Cir. 1902). A more recent case is Capps v. Georgia Pacific Corp., 453 P.2d 935 (Or. 1969). Both are discussed by Judge Posner in Selmer Co. v. Blakeslee-Midwest Co., 704 F.2d 924, 927-29 (7th Cir. 1983).
156. The contract must be in writing under the UPAA. See UNIF. PREMARITAL AGREEMENT ACT § 2.
157. Two cases that reached appellate reporters are State v. Mangon, 603 So. 2d 1131 (Ala. Crim. App. 1992) (involving adultery prosecution), and Commonwealth v. Stowell, 449 N.E.2d 357 (Mass. 1983) (upholding against constitutional attack the imposition of $50 fine for adultery). For a survey of state adultery laws, see chapter 8 of RICHARD A. POSNER & KATHARINE B. SILBAUGH, A GUIDE TO AMERICA'S SEX LAWS (1996). Two articles that discuss the offense of adultery in ordinary and military contexts are Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660 (1991), and Major David S. Jonas, Fraternization: Time for a Rational Department of Defense Standard, 135 MIL. L. REV. 37 (1992).
158. Two cases that reached appellate reporters are State v. Mangon, 603 So. 2d 1131 (Ala. Crim. App. 1992) (involving adultery prosecution), and Commonwealth v. Stowell, 449 N.E.2d 357 (Mass. 1983) (upholding against constitutional attack the imposition of $50 fine for adultery). For a survey of state adultery laws, see chapter 8 of RICHARD A. POSNER & KATHARINE B. SILBAUGH, A GUIDE TO AMERICA'S SEX LAWS (1996). Two articles that discuss the offense of adultery in ordinary and military contexts are Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660 (1991), and Major David S. Jonas, Fraternization: Time for a Rational Department of Defense Standard, 135 MIL. L. REV. 37 (1992).
159. Two cases that reached appellate reporters are State v. Mangon, 603 So. 2d 1131 (Ala. Crim. App. 1992) (involving adultery prosecution), and Commonwealth v. Stowell, 449 N.E.2d 357 (Mass. 1983) (upholding against constitutional attack the imposition of $50 fine for adultery). For a survey of state adultery laws, see chapter 8 of RICHARD A. POSNER & KATHARINE B. SILBAUGH, A GUIDE TO AMERICA'S SEX LAWS (1996). Two articles that discuss the offense of adultery in ordinary and military contexts are Note, Constitutional Barriers to Civil and Criminal Restrictions on Pre- and Extramarital Sex, 104 HARV. L. REV. 1660 (1991), and Major David S. Jonas, Fraternization: Time for a Rational Department of Defense Standard, 135 MIL. L. REV. 37 (1992).
160. See HERBERT JACOB, SILENT REVOLUTION 33-35, 47-51 (1988); Lawrence M. Friedman & Robert V. Percival, Who Sues for Divorce? From Fault Through Fiction to Freedom, 5 J. LEGAL STUD. 61, 65 (1976); Max Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 9 VAND. L. REV. 633, 634 (1956). For an entertaining fictional account, see A.P. HERBERT, HOLY DEADLOCK (1934). The common requirement of "irreconcilable differences" makes exaggeration necessary even today. See Wardle, supra note 72, at 103-04 (arguing collusive divorces are actually more prevalent now than ever). Eliminating all such prerequisites would further reduce the incentives for mendacity.
161. See HERBERT JACOB, SILENT REVOLUTION 33-35, 47-51 (1988); Lawrence M. Friedman & Robert V. Percival, Who Sues for Divorce? From Fault Through Fiction to Freedom, 5 J. LEGAL STUD. 61, 65 (1976); Max Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 9 VAND. L. REV. 633, 634 (1956). For an entertaining fictional account, see A.P. HERBERT, HOLY DEADLOCK (1934). The common requirement of "irreconcilable differences" makes exaggeration necessary even today. See Wardle, supra note 72, at 103-04 (arguing collusive divorces are actually more prevalent now than ever). Eliminating all such prerequisites would further reduce the incentives for mendacity.
162. See HERBERT JACOB, SILENT REVOLUTION 33-35, 47-51 (1988); Lawrence M. Friedman & Robert V. Percival, Who Sues for Divorce? From Fault Through Fiction to Freedom, 5 J. LEGAL STUD. 61, 65 (1976); Max Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 9 VAND. L. REV. 633, 634 (1956). For an entertaining fictional account, see A.P. HERBERT, HOLY DEADLOCK (1934). The common requirement of "irreconcilable differences" makes exaggeration necessary even today. See Wardle, supra note 72, at 103-04 (arguing collusive divorces are actually more prevalent now than ever). Eliminating all such prerequisites would further reduce the incentives for mendacity.
163. See HERBERT JACOB, SILENT REVOLUTION 33-35, 47-51 (1988); Lawrence M. Friedman & Robert V. Percival, Who Sues for Divorce? From Fault Through Fiction to Freedom, 5 J. LEGAL STUD. 61, 65 (1976); Max Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 9 VAND. L. REV. 633, 634 (1956). For an entertaining fictional account, see A.P. HERBERT, HOLY DEADLOCK (1934). The common requirement of "irreconcilable differences" makes exaggeration necessary even today. See Wardle, supra note 72, at 103-04 (arguing collusive divorces are actually more prevalent now than ever). Eliminating all such prerequisites would further reduce the incentives for mendacity.
164. See JACOB, supra note 113, at 33-35.
165. Christine Jolls suggests that one way to hinder renegotiation is to bring in additional parties to the contract whose consent would be required. See Jolls, supra note 107, at 232. In a marriage contract, it would be natural to make the parents third-party beneficiaries with nominal consideration and to require their consent to modification.
166. It is true that requiring fault increases public embarrassment. "[T]he statute[,] permitting divorce on the ground of a year's separation, was enacted in order to enable a husband and wife to terminate their marriage without the sensationalism and public airing of dirty linen which necessarily accompany a divorce based on fault." Harrington v. Harrington, 206 S.E.2d 742, 745 (N.C. Ct. App.), rev'd, 210 S.E.2d 190 (N.C. 1974). This embarrassment, like any increase in the cost of divorce, may reduce the frequency of divorce. The issue is whether and in which situations courts should enforce agreements to increase the costs of divorce.
167. See, e.g., Benjamin E. Hermalin & Michael L. Katz, Judicial Modification of Contracts Between Sophisticated Parties: A More Complete View of Incomplete Contracts and Their Breach, 9 J.L. ECON. & ORG. 230 (1993); Robert A. Hillman, Contract Modification Under the Restatement (Second) of Contracts, 67 CORNELL L. REV. 680, 685 (1982); Jason Scott Johnston, Default Rules/Mandatory Principles: A Game Theoretic Analysis of Good Faith and the Contract Modification Problem, 3 S. CAL. INTERDISC. L.J. 337 (1993); Jolls, supra note 107; Thomas J. Miceli, Contract Modification When Litigating for Damages Is Costly, 15 INT'L REV. L. & ECON. 87 (1995); Aaron S. Edlin & Benjamin E. Hermalin, Contract Renegotiation in Agency Problems (May 1997) (unpublished manuscript, on file with the authors).
168. See, e.g., Benjamin E. Hermalin & Michael L. Katz, Judicial Modification of Contracts Between Sophisticated Parties: A More Complete View of Incomplete Contracts and Their Breach, 9 J.L. ECON. & ORG. 230 (1993); Robert A. Hillman, Contract Modification Under the Restatement (Second) of Contracts, 67 CORNELL L. REV. 680, 685 (1982); Jason Scott Johnston, Default Rules/Mandatory Principles: A Game Theoretic Analysis of Good Faith and the Contract Modification Problem, 3 S. CAL. INTERDISC. L.J. 337 (1993); Jolls, supra note 107; Thomas J. Miceli, Contract Modification When Litigating for Damages Is Costly, 15 INT'L REV. L. & ECON. 87 (1995); Aaron S. Edlin & Benjamin E. Hermalin, Contract Renegotiation in Agency Problems (May 1997) (unpublished manuscript, on file with the authors).
169. See, e.g., Benjamin E. Hermalin & Michael L. Katz, Judicial Modification of Contracts Between Sophisticated Parties: A More Complete View of Incomplete Contracts and Their Breach, 9 J.L. ECON. & ORG. 230 (1993); Robert A. Hillman, Contract Modification Under the Restatement (Second) of Contracts, 67 CORNELL L. REV. 680, 685 (1982); Jason Scott Johnston, Default Rules/Mandatory Principles: A Game Theoretic Analysis of Good Faith and the Contract Modification Problem, 3 S. CAL. INTERDISC. L.J. 337 (1993); Jolls, supra note 107; Thomas J. Miceli, Contract Modification When Litigating for Damages Is Costly, 15 INT'L REV. L. & ECON. 87 (1995); Aaron S. Edlin & Benjamin E. Hermalin, Contract Renegotiation in Agency Problems (May 1997) (unpublished manuscript, on file with the authors).
170. See, e.g., Benjamin E. Hermalin & Michael L. Katz, Judicial Modification of Contracts Between Sophisticated Parties: A More Complete View of Incomplete Contracts and Their Breach, 9 J.L. ECON. & ORG. 230 (1993); Robert A. Hillman, Contract Modification Under the Restatement (Second) of Contracts, 67 CORNELL L. REV. 680, 685 (1982); Jason Scott Johnston, Default Rules/Mandatory Principles: A Game Theoretic Analysis of Good Faith and the Contract Modification Problem, 3 S. CAL. INTERDISC. L.J. 337 (1993); Jolls, supra note 107; Thomas J. Miceli, Contract Modification When Litigating for Damages Is Costly, 15 INT'L REV. L. & ECON. 87 (1995); Aaron S. Edlin & Benjamin E. Hermalin, Contract Renegotiation in Agency Problems (May 1997) (unpublished manuscript, on file with the authors).
171. See, e.g., Benjamin E. Hermalin & Michael L. Katz, Judicial Modification of Contracts Between Sophisticated Parties: A More Complete View of Incomplete Contracts and Their Breach, 9 J.L. ECON. & ORG. 230 (1993); Robert A. Hillman, Contract Modification Under the Restatement (Second) of Contracts, 67 CORNELL L. REV. 680, 685 (1982); Jason Scott Johnston, Default Rules/Mandatory Principles: A Game Theoretic Analysis of Good Faith and the Contract Modification Problem, 3 S. CAL. INTERDISC. L.J. 337 (1993); Jolls, supra note 107; Thomas J. Miceli, Contract Modification When Litigating for Damages Is Costly, 15 INT'L REV. L. & ECON. 87 (1995); Aaron S. Edlin & Benjamin E. Hermalin, Contract Renegotiation in Agency Problems (May 1997) (unpublished manuscript, on file with the authors).
172. Dower gave surviving wives a life estate in one-third of all freehold land of which the husband was seised during marriage and which was inheritable by the issue of the husband and wife. Curtesy gave a surviving husband a life estate in the wife's freeholds of which the wife was seised during marriage and which were inheritable by the issue born alive of the husband and wife. See JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 400-01 (3d ed. 1993); J.E. Stake, Inheritance, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., forthcoming 1998). Under the widely adopted Uniform Probate Code ("UPC"), the surviving spouse has a right to an elective share of the decedent's estate, no matter what the will of the decedent says. See UNIF. PROBATE CODE § 2-202(a) (amended 1993). Under the most recent version of the UPC, this share varies with the length of the marriage. See id. 119. Wax, supra note 3 (manuscript at 48 & n. 124).
173. Dower gave surviving wives a life estate in one-third of all freehold land of which the husband was seised during marriage and which was inheritable by the issue of the husband and wife. Curtesy gave a surviving husband a life estate in the wife's freeholds of which the wife was seised during marriage and which were inheritable by the issue born alive of the husband and wife. See JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 400-01 (3d ed. 1993); J.E. Stake, Inheritance, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW (Peter Newman ed., forthcoming 1998). Under the widely adopted Uniform Probate Code ("UPC"), the surviving spouse has a right to an elective share of the decedent's estate, no matter what the will of the decedent says. See UNIF. PROBATE CODE § 2-202(a) (amended 1993). Under the most recent version of the UPC, this share varies with the length of the marriage. See id. 119. Wax, supra note 3 (manuscript at 48 & n. 124).
174. See id. (manuscript at 8 n. 17) and sources cited therein. On the other hand, it would make sense that wives earning wages outside the home would be able to exercise more control over spending within the marriage, see id. (manuscript at 6 n. 12), and would have a better position from which to bargain over other issues, see id. (manuscript at 45). Wax also notes that greater financial wealth makes equality-enhancing side payments easier. Yet she concludes that "the future of egalitarian marriage is not bright and grows dimmer as married women engage in more and more paid work to generate much needed income for the family." Id. (manuscript at 64).
175. Carol Weisbrod has noted that contracts may be particularly important in times of social uncertainty. See Weisbrod, supra note 45, at 782-83. Lloyd Cohen notes that the looser moral constraints of our time allow a party to gain many of the benefits of divorce without a formal decree. See Cohen, supra note 30, at 300.
176. UNIF. PREMARITAL AGREEMENT ACT § 3(a)(8) (1984).
177. See id. § 3 cmt; Neilson v. Neilson, 780 P.2d 1264 (Utah Ct. App. 1989) (noting that the traditional opposition to premarital agreements has been abandoned in most jurisdictions by judges or by adoption of the UPAA). Section 6 of the Act provides for exceptions such as unconscionability, especially because of lack of disclosure of assets, and provisions that leave a spouse a public charge. See UNIF. PREMARITAL AGREEMENT ACT § 6.
178. "Under the status construct now prevalent, the state superimposes the structure on the partners, but . . . requires the parties to work out their own problems within the context of the marriage." Howard O. Hunter, An Essay on Contract and Status: Race, Marriage, and the Meretricious Spouse, 64 VA. L. REV. 1039, 1075 (1978). For more on courts' refusals to intrude into ongoing marriages, see supra note 9.
179. See infra text accompanying notes 133-39 (discussing public-policy limitations).
180. Of course it is possible that there are substantial positive externalities from women working in the market that do not obtain when women work at home. It is also possible for a couple to choose household production because it is not taxed. The parties might choose to generate less total wealth when income taxes would reduce take-home pay to less than the benefit from household production.
181. Favrot v. Barnes, 332 So. 2d 873, 875 (La. Ct. App. 1976). Laura P. Graham, The Uniform Premarital Agreement Act and Modern Social Policy: The Enforceability of Premarital Agreements Regulating the Ongoing Marriage, 28 WAKE FOREST L. REV. 1037, 1046 (1993), notes that if the parties had tried to litigate this issue while the marriage was still intact, the court would probably have dismissed it and the case would not be in any reporter. Finding examples of court refusals to enforce premarital agreements could be difficult for this reason.
182. Perhaps it offends the sensibilities of the courts to hear such evidence and the protection of sensitive judges is enough to justify not enforcing such a contractual provision. But judges already need iron stomachs, and any judge so offended should find work outside of family-law courts.
183. 232 A.2d 157 (N.J. Super. Ct. App. Div. 1967).
184. For a discussion of this case, see Harvey Levin, Trial by Fire, 66 S. CAL. L. REV. 1619 (1993).
185. See Kilgrow v. Kilgrow, 107 So. 2d 885 (Ala. 1958) (denying injunction restraining wife from taking child to certain school in violation of premarital agreement); Lee M. Friedman, The Parental Right to Control the Religious Education of a Child, 29 HARV. L. REV. 485, 492 (1916) (observing that courts have held agreements regarding religious education unenforceable).
186. See, e.g., Borelli v. Brusseau, 16 Cal. Rptr. 2d 16, 19-20 (Ct. App. 1993) (refusing to enforce contract compensating wife for special nursing provided to husband).
187. The doctrine of voiding contracts against public policy applies only to agreements that violate "some explicit public policy" that is
188. See Towles v. Towles 182 S.E.2d 53 (S.C. 1971) (holding a wife cannot sign away her right to sue for marital support, for that is against public policy).
189. Our remark that this couple's agreement is not far from the status quo is meant seriously. Divorce is often a critical step toward public assistance, even though the result is not usually long-term welfare dependency. The existence of welfare allows husbands to dissolve the marital agreement with even less concern over the fate of their wives and children.
190. Even states allowing agreements to control the consequences of divorce do not enforce such agreements when failure to award support would result in one spouse becoming a public charge. See Osborne v. Osborne, 428 N.E.2d 810, 816 (Mass. 1981). The law does enforce very one-sided commercial contracts that might lead one contractor to become a ward of the state. But this contract is worse because it seems designed to make the wife a ward of the state by denying her the possibility of employment, which commercial contracts do not do.
191. The court might also question whether a rational person would sign such an agreement.
192. Courts will not enforce illegal contracts.
193. Indeed, it ought to be used as evidence in a criminal trial.
194. Leslie Harris, Lee Teitelbaum, and Carol Weisbrod have noted that the typical remedy in contract is damages, and that damages are not an adequate remedy in many family-law situations. See LESLIE J. HARRIS ET AL., FAMILY LAW 691 (1996). That is, however, no reason not to honor family contracts when damages are adequate.
195. See supra text accompanying note 134.
196. The discussion here is about unenforceable terms relating to the ongoing marriage. However, a similar analysis applies to cases in which the court finds an agreement regarding grounds for divorce or terms of divorce to be unenforceable.
197. University of Manitoba death benefits, for example, will be paid either to a legally married spouse or to a "common-law spouse," which includes "a person of the opposite sex who has been publicly represented by the plan member as the Spouse of the plan member i) for a period of not less than 3 years, where either of the persons is prevented by law from marrying the other, or ii) for a period of not less than 1 year, where neither of them is prevented by law from marrying the other." UNIVERSITY OF MAN., PENSION BENEFITS 15 (1991). Clause i) expressly ignores the legal definition of marriage by saying that the University will treat as married some couples who could not legally marry.
198. If a couple has entered into the legal-default marriage and subsequently added terms, third parties would presumably be bound to recognize them as married. A couple that opted out of no-fault divorce would be considered married unless the third party specifically excluded such marriages (as, indeed, it should be free to do).
199. A New York surrogate's court ruled that it would not recognize a marriage that was valid under Rhode Island law, where it occurred. Two New Yorkers, an uncle and niece, married in Rhode Island which allowed Jews (but not others) to marry even if they did not meet the usual consanguinity requirements. The marriage would have been classified as incest in New York. When the niece died, her daughter and the uncle fought for letters of administration. The court held for the daughter. See In re May's Estate, 110 N.Y.S.2d 430 (Sur. Ct. 1952).
200. Sometimes these issues, such as the tax status of the couple, are called "incidents" of the marriage. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). A couple might be married for some purposes and not for others.
201. Cf. Patricia A. Cain, Same-Sex Couples and the Federal Tax Laws, 1 LAW & SEXUALITY 97 (1991) (arguing that lesbian and gay relationships should be treated the same as marital relationships under the Internal Revenue Code).
202. The usual rule is that the incidents of marriage follow the status. See EUGENE F. SCOLES & PETER HAY, CONFLICT OF LAWS 434 (2d ed. 1992).
203. For one of many cases holding that parties cannot contract away such support, see Straub v. B.M.T. by Todd, 645 N.E.2d 597 (Ind. 1994).
204. Child custody is a part of family law that affects more than the two spouses, and even more than the family, so it is outside the prescriptions of this Article.
205. In Cowan v. Cowan, 75 N.W.2d 920 (Iowa 1956), the parties entered into a "collateral agreement" just prior to divorce that provided that if either party should remarry before their youngest child reached the age of majority, he or she would pay $10,000 to the other. When the former husband remarried within the proscribed period, the former wife sued on the contract and won.
206. See Newman v. Newman, 653 P.2d 728, 734 (Colo. 1982) (en bane) ("There is no statutory proscription against contracting for maintenance in the antenuptial agreement"); Gant v. Gant, 329 S.E.2d 106, 116 (W. Va. 1985) (holding that agreements that "establish property settlements and support obligations at the time of divorce are presumptively valid") (emphasis in original). But see In re Marriage of Winegard, 278 N.W.2d 505, 512 (Iowa 1979) (refusing to allow agreement to control support); Duncan v. Duncan, 652 S.W.2d 913, 915 (Tenn. Ct. App. 1983). Antenuptial agreements in contemplation of divorce are enforceable subject to three limits: there must have been full disclosure, the agreement must not be unconscionable at the time enforcement is sought, and the agreement may dispose of only property and maintenance. See Edwardson v. Edwardson, 798 S.W.2d 941, 945-46 (Ky. 1990).
207. Contingent financial payments could be helpful in a large class of marriages in which commitment is important: those in which the husband has invested in outside employment and the wife in household production. If the wife's loss from divorce is greatest after a period of years of specialization in the marriage, then her loss is greatest after the household has had time to accumulate monetary wealth. Thus, contingent financial payments would be practicable exactly where they are most needed for incentive purposes.
208. There has been considerable research on the issue of alimony awards. See MARTHA ALBERTSON FINEMAN, ILLUSION OF EQUALITY 32, 40, 44 (1991) (suggesting that alimony no longer exists); Margaret F. Brinig & Michael V. Alexeev, Trading at Divorce: Preferences, Legal Rules and Transaction Costs, 8 OHIO ST. J. ON DISP. RESOL. 279, 293 (1993) (finding about 30% of the Virginia cases had alimony); June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1492 (1990) (suggesting that spousal support is based on "need, a standard interpreted to provide relatively short-term awards designed to do little more than ease the transition from married life"); Ira Mark Ellman, Theory of Alimony, 77 CAL. L. REV. 1, 22 n.51 (1989) (stating that most women receive no alimony at all); Scott, supra note 3, at 18 ("Long-term alimony is virtually a thing of the past in many states."); Lenore J. Weitzman & Ruth B. Dixon, The Alimony Myth: Does No-Fault Divorce Make A Difference?, 14 FAM. L.Q. 141, 143-44 (1980) (finding 15 to 17% of final California divorce decrees included alimony).
209. There has been considerable research on the issue of alimony awards. See MARTHA ALBERTSON FINEMAN, ILLUSION OF EQUALITY 32, 40, 44 (1991) (suggesting that alimony no longer exists); Margaret F. Brinig & Michael V. Alexeev, Trading at Divorce: Preferences, Legal Rules and Transaction Costs, 8 OHIO ST. J. ON DISP. RESOL. 279, 293 (1993) (finding about 30% of the Virginia cases had alimony); June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1492 (1990) (suggesting that spousal support is based on "need, a standard interpreted to provide relatively short-term awards designed to do little more than ease the transition from married life"); Ira Mark Ellman, Theory of Alimony, 77 CAL. L. REV. 1, 22 n.51 (1989) (stating that most women receive no alimony at all); Scott, supra note 3, at 18 ("Long-term alimony is virtually a thing of the past in many states."); Lenore J. Weitzman & Ruth B. Dixon, The Alimony Myth: Does No-Fault Divorce Make A Difference?, 14 FAM. L.Q. 141, 143-44 (1980) (finding 15 to 17% of final California divorce decrees included alimony).
210. There has been considerable research on the issue of alimony awards. See MARTHA ALBERTSON FINEMAN, ILLUSION OF EQUALITY 32, 40, 44 (1991) (suggesting that alimony no longer exists); Margaret F. Brinig & Michael V. Alexeev, Trading at Divorce: Preferences, Legal Rules and Transaction Costs, 8 OHIO ST. J. ON DISP. RESOL. 279, 293 (1993) (finding about 30% of the Virginia cases had alimony); June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1492 (1990) (suggesting that spousal support is based on "need, a standard interpreted to provide relatively short-term awards designed to do little more than ease the transition from married life"); Ira Mark Ellman, Theory of Alimony, 77 CAL. L. REV. 1, 22 n.51 (1989) (stating that most women receive no alimony at all); Scott, supra note 3, at 18 ("Long-term alimony is virtually a thing of the past in many states."); Lenore J. Weitzman & Ruth B. Dixon, The Alimony Myth: Does No-Fault Divorce Make A Difference?, 14 FAM. L.Q. 141, 143-44 (1980) (finding 15 to 17% of final California divorce decrees included alimony).
211. There has been considerable research on the issue of alimony awards. See MARTHA ALBERTSON FINEMAN, ILLUSION OF EQUALITY 32, 40, 44 (1991) (suggesting that alimony no longer exists); Margaret F. Brinig & Michael V. Alexeev, Trading at Divorce: Preferences, Legal Rules and Transaction Costs, 8 OHIO ST. J. ON DISP. RESOL. 279, 293 (1993) (finding about 30% of the Virginia cases had alimony); June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1492 (1990) (suggesting that spousal support is based on "need, a standard interpreted to provide relatively short-term awards designed to do little more than ease the transition from married life"); Ira Mark Ellman, Theory of Alimony, 77 CAL. L. REV. 1, 22 n.51 (1989) (stating that most women receive no alimony at all); Scott, supra note 3, at 18 ("Long-term alimony is virtually a thing of the past in many states."); Lenore J. Weitzman & Ruth B. Dixon, The Alimony Myth: Does No-Fault Divorce Make A Difference?, 14 FAM. L.Q. 141, 143-44 (1980) (finding 15 to 17% of final California divorce decrees included alimony).
212. There has been considerable research on the issue of alimony awards. See MARTHA ALBERTSON FINEMAN, ILLUSION OF EQUALITY 32, 40, 44 (1991) (suggesting that alimony no longer exists); Margaret F. Brinig & Michael V. Alexeev, Trading at Divorce: Preferences, Legal Rules and Transaction Costs, 8 OHIO ST. J. ON DISP. RESOL. 279, 293 (1993) (finding about 30% of the Virginia cases had alimony); June Carbone, Economics, Feminism, and the Reinvention of Alimony: A Reply to Ira Ellman, 43 VAND. L. REV. 1463, 1492 (1990) (suggesting that spousal support is based on "need, a standard interpreted to provide relatively short-term awards designed to do little more than ease the transition from married life"); Ira Mark Ellman, Theory of Alimony, 77 CAL. L. REV. 1, 22 n.51 (1989) (stating that most women receive no alimony at all); Scott, supra note 3, at 18 ("Long-term alimony is virtually a thing of the past in many states."); Lenore J. Weitzman & Ruth B. Dixon, The Alimony Myth: Does No-Fault Divorce Make A Difference?, 14 FAM. L.Q. 141, 143-44 (1980) (finding 15 to 17% of final California divorce decrees included alimony).
213. Read literally, the lower-earning spouse would also have a financial obligation after divorce, but that obligation would be more than offset by the obligation of the higher-earning spouse.
214. Even if such disincentives to fault are enforceable, there are still reasons to allow parties to constrict the grounds for divorce. See Haas, supra note 3, at 891.
215. See Graham, supra note 127, at 1043. One case in which such an agreement was upheld is Sanders v. Sanders, 288 S.W.2d 473 (Tenn. Ct. App. 1955). A couple agreed to remarry, and that a party who sued for divorce would get none of the property in the settlement. According to their agreement, "'[s]hould either party file a divorce against the other, then the party so filing shall by such filing forfeit to the other all right, title, and interest in all the property, real, personal or mixed, jointly held and owned by them.'" Id. at 475 (quoting the parties' contract). It is interesting that the plaintiffs stated reason for his suit was that his wife "has conceived the idea that she can treat the complainant as she pleases and that he must endure it," including such indignities as calling his grandson "a little bastard" and refusing to sign a joint income-tax return. Id.; see also cases cited supra notes 151-52.
216. One case in which a court upheld such a payment is Akileh v. Elchahal, 666 So. 2d 246 (FIa. Dist. Ct App. 1996). In that case, the wife's father granted the husband a sadaq consisting of $1 paid immediately and a deferred payment of $50,000. (A sadaq is a postponed dowry which protects the woman from divorce in Islam.) The wife left the husband, and the husband sued for the money and lost. Florida law supported the husband's right to the sadaq payment in general, but the court ruled that he had no right in this case because, under Islamic law, the wife would forfeit the payment to the husband only for fault such as adultery. Another example of Islamic contracts of this kind, though a case in which fault was not relevant, is Aziz v. Aziz, 488 N.Y.S.2d 123 (Sup. Ct. 1985). In Aziz, the parties entered into a mahr, a type of antenuptial agreement which required a payment of $5032, with $32 advanced, and $5000 deferred until divorce. The court held that the mahr conformed to New York contract requirements and "its secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony." Id at 124.
217. Another legal concept besides contract that might be applied to marriage is partnership, already mentioned supra at note 108. Commercial partnerships are similar to individualized marriage contracts in that they have great freedom in specifying duties and privileges, but are closer to no-fault marriage in that dissolution is unilateral and the terms are restricted by state law. See Levmore, supra note 10; Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990); Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls, Partnership Buyouts and Dissociation Under No-Fault, 60 U. CHI. L. REV. 67 (1993).
218. Another legal concept besides contract that might be applied to marriage is partnership, already mentioned supra at note 108. Commercial partnerships are similar to individualized marriage contracts in that they have great freedom in specifying duties and privileges, but are closer to no-fault marriage in that dissolution is unilateral and the terms are restricted by state law. See Levmore, supra note 10; Bea Ann Smith, The Partnership Theory of Marriage: A Borrowed Solution Fails, 68 TEX. L. REV. 689 (1990); Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing with Dolls, Partnership Buyouts and Dissociation Under No-Fault, 60 U. CHI. L. REV. 67 (1993).
219. See In re Marriage of Noghrey, 215 Cal. Rptr. 153 (Ct. App. 1985) (refusing to enforce a wife's antenuptial contract claim to $500,000 on the ground that it created an incentive for her to seek divorce); Koch v. Koch, 232 A.2d 157 (N.J. Super. Ct App. Div. 1967).
220. For cases refusing after divorce to enforce premarital agreements regarding religious education or upbringing see In re Marriage of Weiss, 49 Cal. Rptr. 2d 339 (Ct. App. 1996) (refusing to enforce predivorce agreement to rear children in the Jewish faith), and Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. Ct. 1990) (refusing to enforce after divorce an antenuptial agreement to raise children as Jews, and holding that the right to change one's religious convictions, protected by the Free Exercise and Establishment Clauses, is inalienable).
221. Such an agreement was enforced in Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983). After a civil divorce, the husband refused to honor the agreement. The court upheld the agreement, saying that it would also uphold similar agreements to appeal to secular tribunals of the parties' choice. The court limited itself to requiring the husband to show up at the tribunal, rather than ruling on whether the court would enforce its decrees, but one of the contract's terms did provide for damages: "We authorize the Beth Din to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decision." Id. at 137.
222. For an example, see In re Marriage of Noghrey, 215 Cal. Rptr. at 155 (holding unenforceable a ketubah that provided, "I, Kambiz Noghrey, agree to settle on Farima Human the house in Sunny vale and $500,000 or one-half my assets, whichever is greater, in the event of a divorce" on the grounds that it gave the wife too much incentive for a divorce).
223. It could be appropriate, however, to hold that one party had deceived the other into believing that he or she would give the marriage his or her best efforts and had not done so.
224. See Norris v. Norris, 624 P.2d 636 (Or. Ct. App. 1981) (denying enforcement to lopsided agreement presented to wife as they were preparing to go to the Reno courthouse for a marriage license).
225. In some extreme situations, such as that in Sophie's Choice, the word "painful" fails to capture the harm done by being forced to make a choice. See WILLIAM STYRON, SOPHIE'S CHOICE (1979) (telling the story of a woman, Sophie, who is forced to choose which of her two children the Nazis will kill).
226. See Jennifer Geranda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. CAL. L. REV. 745, 784-85 (1995) (pointing out that marriage-contract forms can save transaction costs); Stake, supra note 17, at 430 (suggesting a form with various divorce-consequence options). Private parties could also develop forms, but couples might be less sure the provisions would be considered valid by a court.
227. See H.R. 1049, 110th Leg., 1st Reg. Sess. (Ind. 1997). The Indiana bill allowed divorce after a two-year separation and when a court found "a pattern of physical or psychological abuse" or unconscionability. Indiana House Bill 1049 stated: The clerk of the circuit court shall further inform the parties that a marriage based upon a covenant license may not be dissolved except as a result of a felony conviction, impotency, incurable insanity, adultery, or a court's finding that: (1) a pattern of physical or psychological abuse exists; (2) the parties have been separated for at least two (2) years; or (3) denial of a dissolution of the marriage would be unconscionable. Id.
228. Act of July 15, 1997, No. 1380, 1997 La. Sess. Law Serv. 2358 (West) (to be codified at LA. REV. STAT. ANN. §§ 9:224-:225, :234, :245, :272-:275, :307-:309, and at LA. CIV. CODE ANN. arts. 102-103). The Louisiana covenant marriage allows unilateral divorce only for fault or after a lengthy separation. Divorce is not obtainable except on these fault grounds. See id. § 1, 1997 La. Sess. Law Serv. at 2362-63 (amending LA. REV. STAT. ANN. § 9:307). There is no provision in the Louisiana law allowing individual tailoring of the marital contract beyond the two choices offered. The Louisiana law will undoubtedly lead to litigation when someone tries to dissolve a Louisiana covenant marriage by going to Texas. See choice-of-law discussion infra Part VI.B.
229. Although there is much talk about returning to a fault-based system, there is little attention given to the problems of forcing such a system upon couples who married with different expectations. It would be just as unfair to change their marriage as it was to change the existing marriages at the time of the no-fault revolution. Those who clamor for a return to the past seem bound to repeat past mistakes.
230. The UPAA allows the parties to specify "[t]he choice of law governing the construction of the agreement." UNIF. PREMARITAL AGREEMENT ACT § 3(a)(7) (1984).
231. Contractual provisions dealing with the acquisition of property during the marriage may raise similarly knotty conflicts issues. Those issues are beyond the scope of this paper. It is interesting to note that Indiana, which is now considering legislation allowing couples to make divorce more difficult, was the first divorce-mill state. See Val Nolan, Jr., Indiana: Birthplace of Migratory Divorce, 26 IND. L.J. 515, 515 (1951).
232. See RESTATEMENT (SECOND) OF CONFLICTS § 187 (1971) (allowing parties unfettered choice of governing law as to matters of interpretation and policy-limited choice as to validity). Moreover, the law of the state of celebration usually determines the validity of the marriage. See id. § 283; SCOLES & HAY, supra note 148, at 438-45; Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L.J. 1965 (1997) (arguing that the Full Faith and Credit Clause requires states to recognize the status of marriages valid where entered).
233. See Maynard v. Hill, 125 U.S. 190 (1888). Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. . . . . . . . It is an institution, in the maintenance of which in its purity the public is deeply interested . . . . Id. at 205, 211.
234. It does not help much to recharacterize the issue as one of marital-agreement law rather than divorce law. Although states usually recognize marriages valid where made, see supra note 173, states are not compelled to honor other states' marriages, much less the accompanying marital agreements. If young Virginians, say, were to go to Maryland, which might have a lower age limit to marry without parental consent, Virginia could choose whether to recognize the marriage. See Needam v. Needam, 33 S.E.2d 288 (Va. 1945) (deciding to honor a Maryland marriage).
235. When states made divorce difficult, they could plausibly argue that they had a strong interest in the marriage, in keeping the couple together. But states have shown through reforms allowing easy divorce that they have little interest in keeping couples together. Conversely, the ease of marriage shows that they have little interest in keeping couples apart. Hence, it is hard to see what strong interest a state can plausibly assert in a person's marital status today.
236. All it takes is one state that is willing to ignore the agreement to deprive the agreement of some of its beneficial incentive effects. For this reason, section 3(a)(7) of the UPAA, which allows contractual choice of law, would have to be adopted by all states to make agreements reliable. See UNIF. PREMARITAL AGREEMENT ACT § 3(a)(7) (1984).
237. 317 U.S. 287 (1942). One of two defendants being prosecuted in North Carolina for bigamy had obtained a Nevada divorce on grounds of "extreme mental cruelty," which under Nevada law was established by her unrebutted claim that her husband was moody, uncheerful, and untalkative. Her claim to domicile rested on having spent six weeks in an Alamo Auto Court in Nevada. See id. at 313 (Jackson, J., dissenting). Williams reversed Haddock v. Haddock, 201 U.S. 562 (1906), which held that an ex parte divorce could be obtained only where both spouses were last domiciled together. Dissenting in Williams, Justice Jackson said "settled family relationships may be destroyed by a procedure that we would not recognize if the suit were one to collect a grocery bill." Williams, 317 U.S. at 316 (Jackson, J., dissenting). Jackson also said, "I see no reason why the marriage contract, if such it be considered, should be discriminated against, nor why a party to a marriage contract should be more vulnerable to a foreign judgment without process than a party to any other contract." Id. at 317-18 (Jackson, J., dissenting). His dissatisfaction, like ours, lies in the treatment of marriage as status rather than contract On remand, the North Carolina court found that the divorce was not a valid divorce under Nevada law because the Nevada court lacked jurisdiction since the defendant had not intended to reside indefinitely in Nevada. See State v. Williams, 29 S.E.2d 744 (N.C. 1944). This determination was upheld in Williams II, see Williams v. North Carolina, 325 U.S. 226, 238-39 (1945), and the defendants lost. Thus it appears, surprisingly enough, that Madame Butterfly was correct as to the possibilities under American law. Butterfly (very nervous, growing excited): Here, husbands are not queasy. "Had enough! Send her packing, it's so easy!" That's what they call divorce here. But in America things are very different . . . . There they have judges to deal with such scoundrels. One of them asks him: "You want to leave your wife? May I ask why?" "Married life bores me, so please divorce me!" What does the judge say? "Ah, that's what you think! Two years in prison!" GIACOMO PUCCINI, MADAMA BUTTERFLY 15 (G. Schirmer ed. & John Gutman trans., G. Schirmer 1963) (1904). Current American law offers much less protection against divorce than in Butterfly's day, and current Japanese law offers more. See supra notes 13-21, 57 and accompanying text.
238. For the reasons in these last two paragraphs, a failure by Louisianans to choose the covenant marriage in that state's experiment, see supra note 169, might not mean much. They might view a binding agreement as being worth its purchase price, but might decline on the ground that the agreement would not effectively restrict divorce. On the other hand, choice of the covenant option by many Louisianans does not mean that they made the right choice, though it does suggest that they think the binding marriage better suits their needs.
239. Note the problem this creates for Conservative's position in the dialog above, and for empirical studies of the effect of changing divorce laws or changes in one state's laws. See generally SCOLES & HAY, supra note 148, at 497 (noting that the choice-of-law issue becomes a jurisdictional issue); Larry Ribstein & Bruce Kobayashi, Federalism, Efficiency and Competition, ¶¶ 73-81 (Sept. 25, 1997 draft) (unpublished manuscript), available at 〈http://mason.gmu.edu/∼Lribstei/index.htm〉 (independently coming to the same conclusion as this paper, that one state's covenant marriage has little future if it is not honored in other states).
240. See, e.g., IND. CODE ANN. § 31-11-8-6 (Michie 1997); VA. CODE ANN. § 20-40 (Michie 1995).
241. U.S. CONST, art. IV, § 1.
242. The solemnization of the marriage could be viewed as a low-grade adjudication, but it certainly lacks some of the characteristics of a disputed case.
243. An Indiana suit designed to obtain a court's imprimatur, which either party could later expose as collusive, might not qualify as a "judicial proceeding" entitled to full faith and credit. So the parties cannot make their agreement bulletproof by lawsuit.
244. Perhaps the law could also make any declaration of intent in a foreign tribunal irrebuttable evidence of intent for desertion purposes. It might also provide that the forsaken spouse could get a prejudgment attachment of property.
245. The constitutional basis for such a law might be the spending power, or, better, the Full Faith and Credit Clause, which says "And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." U.S. CONST, art. IV, § 1. The purpose of the clause is to protect national unity, and it gives Congress a large role in deciding in what ways national unity is to be achieved.
246. On the other end of the free-choice spectrum, such a law would also require the few remaining states in which unilateral, no-fault divorce is not available to honor no-fault divorce agreements made in other states. Such a federal law need not interfere with the operation of anti-evasion statutes, however.
247. One might ask Loving about that. See Loving v. Virginia, 388 U.S. 1 (1967) (holding unconstitutional a Virginia state law prohibiting mixed-race marriages); supra note 27 and accompanying text.
248. Recently, foreign-state recognition of same-sex marriages has become a hot issue. That problem is outside the scope of this paper. We are just saying that if Hawaii allows same-sex marriages with reduced grounds for divorce, Indiana should not allow them to be easily dissolved. This is distinct, however, from the question of whether Indiana would have to recognize such marriages for, for example, state income-tax filing.
249. See Krauskopf & Thomas, supra note 3, and Weitzman, supra note 44, for descriptions of the traditional requirements. One case is Ritchie v. White, 35 S.E.2d 414, 453 (N.C. 1945), where the North Carolina Supreme Court said, "It is the public policy of the State that a husband shall provide support for himself and his family."
250. The terms of divorce have shifted somewhat toward contract, but the marital relationship has not.
251. An example of this is the discussion of whether and when alimony should be awarded upon divorce, and what theory ought to be applied in making that determination.
252. Of course, a number of important writings do address the issue of private verses public ordering of marriage law. See SCHNEIDER & BRINIG, supra note 2; WEITZMAN, supra note 44; Ann Laquer Estin, Law and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989 (1995); Hunter, supra note 124, at 1075-76; Robert H. Mnookin, Divorce Bargaining: The Limits on Private Ordering, 18 U. MICH. J.L. REFORM 1015, 1024-26 (1985); Schultz, supra note 3; Sally Burnett Sharp, Fairness Standards and Separation Agreements: A Word of Caution on Contractual Freedom, 132 U. PA. L. REV. 1399 (1984); Trebilcock & Keshvani, supra note 7; Wax, supra note 3 (manuscript at 106-10); Younger, supra note 38; Marsha Garrison, Marriage: The Status of Contract, 131 U. PA. L. REV. 1039 (1983) (book review). However, rarely does the discussion deal specifically with private ordering of the grounds for divorce.
253. Of course, a number of important writings do address the issue of private verses public ordering of marriage law. See SCHNEIDER & BRINIG, supra note 2; WEITZMAN, supra note 44; Ann Laquer Estin, Law and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989 (1995); Hunter, supra note 124, at 1075-76; Robert H. Mnookin, Divorce Bargaining: The Limits on Private Ordering, 18 U. MICH. J.L. REFORM 1015, 1024-26 (1985); Schultz, supra note 3; Sally Burnett Sharp, Fairness Standards and Separation Agreements: A Word of Caution on Contractual Freedom, 132 U. PA. L. REV. 1399 (1984); Trebilcock & Keshvani, supra note 7; Wax, supra note 3 (manuscript at 106-10); Younger, supra note 38; Marsha Garrison, Marriage: The Status of Contract, 131 U. PA. L. REV. 1039 (1983) (book review). However, rarely does the discussion deal specifically with private ordering of the grounds for divorce.
254. Of course, a number of important writings do address the issue of private verses public ordering of marriage law. See SCHNEIDER & BRINIG, supra note 2; WEITZMAN, supra note 44; Ann Laquer Estin, Law and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989 (1995); Hunter, supra note 124, at 1075-76; Robert H. Mnookin, Divorce Bargaining: The Limits on Private Ordering, 18 U. MICH. J.L. REFORM 1015, 1024-26 (1985); Schultz, supra note 3; Sally Burnett Sharp, Fairness Standards and Separation Agreements: A Word of Caution on Contractual Freedom, 132 U. PA. L. REV. 1399 (1984); Trebilcock & Keshvani, supra note 7; Wax, supra note 3 (manuscript at 106-10); Younger, supra note 38; Marsha Garrison, Marriage: The Status of Contract, 131 U. PA. L. REV. 1039 (1983) (book review). However, rarely does the discussion deal specifically with private ordering of the grounds for divorce.
255. Of course, a number of important writings do address the issue of private verses public ordering of marriage law. See SCHNEIDER & BRINIG, supra note 2; WEITZMAN, supra note 44; Ann Laquer Estin, Law and Obligation: Family Law and the Romance of Economics, 36 WM. & MARY L. REV. 989 (1995); Hunter, supra note 124, at 1075-76; Robert H. Mnookin, Divorce Bargaining: The Limits on Private Ordering, 18 U. MICH. J.L. REFORM 1015, 1024-26 (1985); Schultz, supra note 3; Sally Burnett Sharp, Fairness Standards and Separation Agreements: A Word of Caution on Contractual Freedom, 132 U. PA. L. REV. 1399 (1984); Trebilcock & Keshvani, supra note 7; Wax, supra note 3 (manuscript at 106-10); Younger, supra note 38; Marsha Garrison, Marriage: The Status of Contract, 131 U. PA. L. REV. 1039 (1983) (book review). However, rarely does the discussion deal specifically with private ordering of the grounds for divorce.
256. See sources cited in Wax, supra note 3 (manuscript at 114 n.298).
257. This analogy makes it plain that our discussion assumes that there is no possibility the private sector can supply binding law. Our argument is that the government is the only potential supplier and is failing to supply a valuable good that it could supply at low cost.