Forcing incidents of marriage on unmarried cohabitants: The American Law Institute's Principles of Family Dissolution

Notre Dame Law Review

Volumn 76, Issue 5, 2001, Pages 1467-1490

  Westfall, David ^a,b  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITY OF MISSOURI   (United States)

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EID: 0035604110     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (149)

1. Marvin v. Marvin, 537 P.2d 106 (Cal. 1976).
2. PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (Tentative Draft No. 4, 2000) [hereinafter ALI PRINCIPLES (Tentative Draft 2000)]. The Principles were approved by the members of the American Law Institute at its annual meeting. As the final version of the Principles was not available when this Essay went to press, unless otherwise indicated, all references herein to Principles are to Tentative Draft No. 4.
3. PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS (Tentative Draft No. 4, 2000) [hereinafter ALI PRINCIPLES (Tentative Draft 2000)]. The Principles were approved by the members of the American Law Institute at its annual meeting. As the final version of the Principles was not available when this Essay went to press, unless otherwise indicated, all references herein to Principles are to Tentative Draft No. 4.
4. See id. §§ 6.01-.06.
5. See id. §§ 7.01-.18.
6. These claims relate both to the division of property on dissolution and compensatory spousal payments. The principal provisions dealing with these topics are included in PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS chs. 4-5 (Proposed Final Draft, Part I, 1997) [hereinafter ALI PRINCIPLES (Proposed Final Draft 1997)], although minor revisions of both chapters are included in the recent tentative draft. See ALI PRINCIPLES (Tentative Draft 2000), supra note 2, at 61, 353.
7. These claims relate both to the division of property on dissolution and compensatory spousal payments. The principal provisions dealing with these topics are included in PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS chs. 4-5 (Proposed Final Draft, Part I, 1997) [hereinafter ALI PRINCIPLES (Proposed Final Draft 1997)], although minor revisions of both chapters are included in the recent tentative draft. See ALI PRINCIPLES (Tentative Draft 2000), supra note 2, at 61, 353.
8. These claims relate both to the division of property on dissolution and compensatory spousal payments. The principal provisions dealing with these topics are included in PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS chs. 4-5 (Proposed Final Draft, Part I, 1997) [hereinafter ALI PRINCIPLES (Proposed Final Draft 1997)], although minor revisions of both chapters are included in the recent tentative draft. See ALI PRINCIPLES (Tentative Draft 2000), supra note 2, at 61, 353.
9. For comments on earlier drafts of these chapters, see J. Thomas Oldham, ALi Principles of Family Dissolution: Some Comments, 1997 U. ILL. L. REV. 801.
10. I should acknowledge my own miniscule role in the "Members Consultative Group" for the Principles. After one meeting, it became clear to me that the Group and the Reporters were marching to a very different beat and that my efforts to alter their views would be futile. I tried again at the May 2000 Annual Meeting, introducing three motions to amend chapters six and seven, but they were all defeated by voice votes.
11. See ALI, 2000 ANNUAL REPORTS OF THE INSTITUTE, Bylaw § 6.01, at 61, 64 (2000).
12. Id. § 3.02, at 61, 62.
13. Id. § 3.04, at 61, 64.
14. See 72 ALI, ANNUAL MEETING PROCEEDINGS 128, 142 (1995).
15. See, e.g., Alex Elson & Michael L. Shakman, The ALi Principles of Corporate Governance: A Tainted Process and a Flawed Product, 49 Bus. LAW. 1761 (1994); Monroe H. Freedman, Caveat Lector: Conflicts of Interest of ALI Members in Drafting the Restatements, 26 HOFSTRA L. REV. 641 (1998); Carol B. Swanson, Juggling Shareholder Rights and Strike Suits in Derivative Litigation: The ALI Drops the Ball, 77 MINN. L. REV. 1339 (1993); Frank J. Vandall, The American Law Institute Is Dead in the Water, 26 HOFSTRA L. REV. 801, 802 (1998) (asserting the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) "reads like a wish list for manufacturing America").
16. See, e.g., Alex Elson & Michael L. Shakman, The ALi Principles of Corporate Governance: A Tainted Process and a Flawed Product, 49 Bus. LAW. 1761 (1994); Monroe H. Freedman, Caveat Lector: Conflicts of Interest of ALI Members in Drafting the Restatements, 26 HOFSTRA L. REV. 641 (1998); Carol B. Swanson, Juggling Shareholder Rights and Strike Suits in Derivative Litigation: The ALI Drops the Ball, 77 MINN. L. REV. 1339 (1993); Frank J. Vandall, The American Law Institute Is Dead in the Water, 26 HOFSTRA L. REV. 801, 802 (1998) (asserting the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) "reads like a wish list for manufacturing America").
17. See, e.g., Alex Elson & Michael L. Shakman, The ALi Principles of Corporate Governance: A Tainted Process and a Flawed Product, 49 Bus. LAW. 1761 (1994); Monroe H. Freedman, Caveat Lector: Conflicts of Interest of ALI Members in Drafting the Restatements, 26 HOFSTRA L. REV. 641 (1998); Carol B. Swanson, Juggling Shareholder Rights and Strike Suits in Derivative Litigation: The ALI Drops the Ball, 77 MINN. L. REV. 1339 (1993); Frank J. Vandall, The American Law Institute Is Dead in the Water, 26 HOFSTRA L. REV. 801, 802 (1998) (asserting the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) "reads like a wish list for manufacturing America").
18. See, e.g., Alex Elson & Michael L. Shakman, The ALi Principles of Corporate Governance: A Tainted Process and a Flawed Product, 49 Bus. LAW. 1761 (1994); Monroe H. Freedman, Caveat Lector: Conflicts of Interest of ALI Members in Drafting the Restatements, 26 HOFSTRA L. REV. 641 (1998); Carol B. Swanson, Juggling Shareholder Rights and Strike Suits in Derivative Litigation: The ALI Drops the Ball, 77 MINN. L. REV. 1339 (1993); Frank J. Vandall, The American Law Institute Is Dead in the Water, 26 HOFSTRA L. REV. 801, 802 (1998) (asserting the RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) "reads like a wish list for manufacturing America").
19. Jeffrey O'Connell & Chad M. Oldfather, A Lost Opportunity: A Review of the American Law Institute's Reporters' Study on Enterprise Responsibility for Personal Injury, 30 SAN DIEGO L. REV. 307, 307 (1993).
20. ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.02.
21. Id.
22. See infra notes 83-85.
23. Marvin v. Marvin, 557 P.2d 106, 116 (Cal. 1976). The Marvin opinion has been the subject of many comments. For a particularly thoughtful analysis of its possible implications, see Herma Hill Kay & Carol Amyx, Marvin v. Marvin: Preserving the Options, 65 CAL. L. REV. 937 (1977). See also Christina M. Fernández, Note, Beyond Marvin: A Proposal for Quasi-Spousal Support, 30 STAN. L. REV. 359, 363 (1978) (suggesting that the next development in de facto marriage property settlement should allow for support payments); Comment, Property Rights Upon Termination of Unmarried Cohabitation: Marvin v. Marvin, 90 HARV. L. REV. 1708, 1714 (1977) (arguing Marvin will "mak[e] cohabitation a more attractive and flexible arrangement").
24. Marvin v. Marvin, 557 P.2d 106, 116 (Cal. 1976). The Marvin opinion has been the subject of many comments. For a particularly thoughtful analysis of its possible implications, see Herma Hill Kay & Carol Amyx, Marvin v. Marvin: Preserving the Options, 65 CAL. L. REV. 937 (1977). See also Christina M. Fernández, Note, Beyond Marvin: A Proposal for Quasi-Spousal Support, 30 STAN. L. REV. 359, 363 (1978) (suggesting that the next development in de facto marriage property settlement should allow for support payments); Comment, Property Rights Upon Termination of Unmarried Cohabitation: Marvin v. Marvin, 90 HARV. L. REV. 1708, 1714 (1977) (arguing Marvin will "mak[e] cohabitation a more attractive and flexible arrangement").
25. Marvin v. Marvin, 557 P.2d 106, 116 (Cal. 1976). The Marvin opinion has been the subject of many comments. For a particularly thoughtful analysis of its possible implications, see Herma Hill Kay & Carol Amyx, Marvin v. Marvin: Preserving the Options, 65 CAL. L. REV. 937 (1977). See also Christina M. Fernández, Note, Beyond Marvin: A Proposal for Quasi-Spousal Support, 30 STAN. L. REV. 359, 363 (1978) (suggesting that the next development in de facto marriage property settlement should allow for support payments); Comment, Property Rights Upon Termination of Unmarried Cohabitation: Marvin v. Marvin, 90 HARV. L. REV. 1708, 1714 (1977) (arguing Marvin will "mak[e] cohabitation a more attractive and flexible arrangement").
26. Marvin, 557 P.2d at 121 (citations omitted).
27. Id. at 110.
28. Id. at 117 n.11.
29. See U.C.C. § 2-302 (1989); RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981).
30. See David L. Chambers, The "Legalization" of the Family: Toward a Policy of Supportive Neutrality, 18 U. MICH. J.L. REFORM 805, 824 (1985).
31. Marvin, 557 P.2d at 123 n.25; see Marvin v. Marvin, 176 Cal. Rptr. 555, 558 (Ct. App. 1981) (noting that the trial court seemed to have based its judgment on footnotes twenty-five and twenty-six).
32. Marvin v. Marvin, 5 Fam. L. Rep. (BNA) 3077, 3085 (Cal. Super. Ct. 1979), rev'd, 176 Cal. Rptr. 555 (Ct. App. 1981).
33. Marvin, 176 Cal. Rptr. at 558.
34. Id. at 559.
35. Chambers, supra note 22, at 825.
36. See id.
37. Id. at 826. Another commentator has suggested that written agreements not only obviate many of the problems of proof that arise when a claim is based on an oral contract, but may also lead couples to consider more carefully the possible consequences of the dissolution of their cohabitation arrangement. See Twila. L. Perry, Dissolution Planning in Family Law: A Critique of Current Analyses and a Look Toward the Future, 24 FAM. L.Q. 77, 116-18 (1990).
38. Marvin v. Marvin, 557 P.2d 106, 122-23 (Cal. 1976) (citations omitted).
39. See J. THOMAS OLDHAM, DIVORCE, SEPARATION AND THE DISTRIBUTION OF PROPERTY § 1.02 (5) (c) (2001).
40. See 5 AUSTIN WAKEMAN SCOTT & WILLIAM FRANKLIN FRATCHER, THE LAW OF TRUSTS § 440.1 (4th ed. 1987).
41. 14 P.3d 764 (Wash. 2000).
42. In this context, Washington gives "meretricious relationship" an unusual meaning. Compare the definition in Black's Law Dictionary: "1. Involving prostitution; of an unlawful sexual nature 〈a meretricious encounter〉. 2. (Of a romantic relationship) involving either two people of the same sex or lack of capacity on the part of one party 〈a meretricious marriage〉 . . . ." BLACK'S LAW DICTIONARY 1002 (7th ed. 1999).
43. See Connell v. Francisco, 898 P.2d 831, 836-37 (Wash. 1995) (en banc). For a critical comment on the decision, see Gavin M. Parr, What Is a "Meretricious Relationship"?: An Analysis of Cohabitant Property Rights Under Connell v. Francisco, 74 WASH. L. REV. 1243 (1999).
44. Other decisions relying on a status approach in distributing cohabitants' property after a long-term relationship include Wilbur v. DeLapp, 850 P.2d 1151, 1153 (Or. Ct. App. 1993), and Shuraleffv. Donnelly, 817 P.2d 764, 768 (Or. Ct. App. 1991). Similar results were reached in Pickens v. Pickens, 490 So. 2d 872 (Miss. 1986). In other cases, courts have relied on constructive trust doctrine to award a cohabitant a property interest. See, e.g., Evans v. Wall, 542 So. 2d 1055 (Fla. Dist. Ct. App. 1989); Sullivan v. Rooney, 533 N.E.2d 1372 (Mass. 1989). Citations for foreign jurisdictions that have reached similar results by including cohabitants, including same-sex partners, in the definition of spouse, are collected in ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 6.03 Reporter's Notes.
45. Pennington, 14 P.3d at 773.
46. Id. at 770 (quoting Connell, 898 P.2d at 834).
47. Id.
48. Id. at 771.
49. Id. A significant factor in the court's determination that no mutual intent to be in a meretricious relationship existed was that, while the female cohabitant insisted on marrying, the male cohabitant refused. Id.
50. See supra text accompanying note 27.
51. See supra text accompanying note 29.
52. But see Donnell v. Stogel, 560 N.Y.S.2d 200, 201 (N.Y. App. Div. 1990) (enforcing a contract between unmarried cohabitants who lived "together under the same roof as man and wife for 4 years").
53. See ALI PRINCIPLES (Proposed Final Draft 1997), supra note 5, § 5.15.
54. See generally Katherine C. Gordon, Note, The Necessity and Enforcement of Cohabitation Agreements: When Strings Will Attach and How to Prevent Them - A State Survey, 37 BRANDEIS L.J. 245 (1998-1999); George L. Blum, Annotation, Property Rights Arising from Relationship of Couple Cohabiting Without Marriage, 69 A.L.R.5th 219 (1999) (noting that states not recognizing the putative marriage doctrine formulate various methods for property distribution after dissolution).
55. See generally Katherine C. Gordon, Note, The Necessity and Enforcement of Cohabitation Agreements: When Strings Will Attach and How to Prevent Them - A State Survey, 37 BRANDEIS L.J. 245 (1998-1999); George L. Blum, Annotation, Property Rights Arising from Relationship of Couple Cohabiting Without Marriage, 69 A.L.R.5th 219 (1999) (noting that states not recognizing the putative marriage doctrine formulate various methods for property distribution after dissolution).
56. MINN. STAT. § 513.075 (1998) (originally enacted in 1980). In the first reported case to deal with the statute, the Minnesota Supreme Court upheld the probate court's imposition of a constructive trust on a one-half interest in a home purchased with the joint funds of the cohabitants but with title taken in the name of the decedent, reasoning that the statute was not intended to apply where rights were asserted based on property "acquired for cash consideration wholly independent of any service contract related to cohabitation." Estate of Eriksen, 337 N.W.2d 671, 674 (Minn. 1983). However, subsequent appellate decisions have often distinguished Eriksen and have applied the statute to bar cohabitants' claims not based on the contribution of cash to the purchase of property. See, e.g., Hollom v. Carey, 343 N.W.2d 701, 704 (Minn. Ct. App. 1984); see also Obert v. Dahl, 574 N.W.2d 747, 749-50 (Minn. Ct. App. 1998) (noting that subsequent cases from that court have distinguished or declined to apply Eriksen). The latest decision of the Minnesota Supreme Court reaffirms the conclusion in Eriksen that the statute does not bar claims of unjust enrichment based on financial contributions to the purchase price of property. See Estate of Palmen, 588 N.W.2d 493, 495-96 (Minn. 1999) (en banc).
57. TEX. FAM. CODE ANN. § 1.108 (Vernon 1998). In what appears to be the only reported case interpreting the statute, it was applied to deny an alleged same-sex partner's claim for relief after seventeen years of cohabitation. See Zaremba v. Cliburn, 949 S.W.2d 822, 829 (Tex. App. 1997). The statute is criticized in Buddy Brixey, Comment, Texas Legislation on the Statute of Frauds in Palimony Suits: Is an Oral Contract Worth the Paper It's Written On?, 25 Hous. L. REV. 979, 980 (1988).
58. See MINN. STAT. § 513.076 (1998) (originally enacted in 1980). For comments criticizing the statute, see Kim Kantorowicz, Comment, Contracts - Cohabitation in Minnesota: From Love to Contract - Public Policy Gone Awry in In Re Estate of Palmen, 588 N.W.2d 493 (Minn. 2000), 26 WM. MITCHELL L. REV. 213 (1999); Mary L. Knoblauch, Minnesota's Cohabitation Statute, 2 LAW & INEQ. 335 (1984).
59. See MINN. STAT. § 513.076 (1998) (originally enacted in 1980). For comments criticizing the statute, see Kim Kantorowicz, Comment, Contracts - Cohabitation in Minnesota: From Love to Contract - Public Policy Gone Awry in In Re Estate of Palmen, 588 N.W.2d 493 (Minn. 2000), 26 WM. MITCHELL L. REV. 213 (1999); Mary L. Knoblauch, Minnesota's Cohabitation Statute, 2 LAW & INEQ. 335 (1984).
60. See MINN. STAT. § 513.076 (1998) (originally enacted in 1980). For comments criticizing the statute, see Kim Kantorowicz, Comment, Contracts - Cohabitation in Minnesota: From Love to Contract - Public Policy Gone Awry in In Re Estate of Palmen, 588 N.W.2d 493 (Minn. 2000), 26 WM. MITCHELL L. REV. 213 (1999); Mary L. Knoblauch, Minnesota's Cohabitation Statute, 2 LAW & INEQ. 335 (1984).
61. Zaremba, 949 S.W.2d at 829.
62. See Posik v. Layton, 695 So. 2d 759, 762 (Fla. Dist. Ct. App. 1997); Kohler v. Flynn, 493 N.W.2d 647, 649 (N.D. 1992).
63. Posik, 695 So. 2d at 762.
64. See Morone v. Morone, 413 N.E.2d 1154, 1156 (N.Y. 1980).
65. See Hewitt v. Hewitt, 394 N.E.2d 1204, 1208-09 (Ill. 1979).
66. 581 A.2d 162, 165 (Pa. 1990).
67. UNIF. PREMARITAL AGREEMENT ACT, 9B U.L.A. 369 (1987).
68. See Pendleton v. Fireman, 5 P.3d 839, 845-47 (Cal. 2000).
69. See id. at 845.
70. HENRY SUMNER MAINE, ANCIENT LAW: ITS CONNECTION WITH THE EARLY HISTORY OF SOCIETY AND ITS RELATION TO MODERN TIMES 163-65 (London, Scribner 1861).
71. Wolfgang G. Friedmann, Some Reflections on Status and Freedom, in ESSAYS IN JURISPRUDENCE IN HONOR OF ROSCOE POUND 222, 236 (Ralph A. Newman ed., 1962).
72. Howard O. Hunter, An Essay on Contract and Status: Race, Marriage, and the Meretricious Spouse, 64 VA. L. REV. 1039, 1095 (1978).
73. See Kay & Amyx, supra note 17, at 968-73.
74. Id. at 973.
75. Perry, supra note 29, at 115.
76. See UNIF. MARRIAGE & DIVORCE ACT § 306, 9A U.L.A. 248-49 (1998).
77. See In re Marriage of Dawley, 551 P.2d 323, 333 (Cal. 1976) (rejecting the view that in order for an antenuptial agreement to be valid, the parties must contemplate a lifelong marriage).
78. See Posner v. Posner, 233 So. 2d 381 (Fla. 1970).
79. See infra text accompanying notes 128-35.
80. See UNIF. PREMARITAL AGREEMENT ACT, 9B U.L.A. 89 (Supp. 2000).
81. See sources cited infra note 80; see also J. Thomas Oldham & David S. Caudill, A Reconnaissance of Public Policy Restrictions upon Enforcement of Contracts Between Cohabitants, 18 FAM. L.Q. 93, 98-106 (1984) (contending that a state's interest in ensuring that spouses are left with adequate financial resources and in preventing spouses and children from becoming wards of the state applies as well to protection of cohabitants). They suggest that agreements between de facto spouses (couples who cohabit for more than five years or have a child together) should be scrutinized in the same manner as agreements between lawful spouses. Id. at 121.
82. Grace Ganz Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. REV. 1125, 1135 (1981) (quoting J. TROST, UNMARRIED COHABITATION 63-64 (1979)).
83. Grace Ganz Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. REV. 1125, 1135 (1981) (quoting J. TROST, UNMARRIED COHABITATION 63-64 (1979)).
84. Id. at 1163.
85. Id.
86. Id. at 1166.
87. Id. at 1167.
88. Id. at 1163.
89. Marvin v. Marvin, 557 P.2d 106, 113 (Cal. 1976).
90. See supra text accompanying notes 21-22.
91. See, e.g., 2 ALEXANDER LINDEY & Louis I. PARLEY, LINDEY AND PARLEY ON SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS § 100.02 (2d ed. 2000).
92. In exalting status in this context, the ALI is by no means alone. See Blumberg, supra note 71, at 1128; David S. Caudill, Legal Recognition of Unmarried Cohabitation: A Proposal to Update and Reconsider Common-Law Marriage, 49 TENN. L. REV. 537, 556-59 (1982); H. Jay Folberg & William P. Buren, Domestic Partnership: A Proposal for Dividing the Property of Unmarried Families, 12 WILLAMETTE L. REV. 453, 479-84 (1976); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1677 (1984).
93. In exalting status in this context, the ALI is by no means alone. See Blumberg, supra note 71, at 1128; David S. Caudill, Legal Recognition of Unmarried Cohabitation: A Proposal to Update and Reconsider Common-Law Marriage, 49 TENN. L. REV. 537, 556-59 (1982); H. Jay Folberg & William P. Buren, Domestic Partnership: A Proposal for Dividing the Property of Unmarried Families, 12 WILLAMETTE L. REV. 453, 479-84 (1976); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1677 (1984).
94. In exalting status in this context, the ALI is by no means alone. See Blumberg, supra note 71, at 1128; David S. Caudill, Legal Recognition of Unmarried Cohabitation: A Proposal to Update and Reconsider Common-Law Marriage, 49 TENN. L. REV. 537, 556-59 (1982); H. Jay Folberg & William P. Buren, Domestic Partnership: A Proposal for Dividing the Property of Unmarried Families, 12 WILLAMETTE L. REV. 453, 479-84 (1976); William A. Reppy, Jr., Property and Support Rights of Unmarried Cohabitants: A Proposal for Creating a New Legal Status, 44 LA. L. REV. 1677, 1677 (1984).
95. ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 6.03. For the suggested time periods, see id. § 6.03, cmt. d.
96. Id. § 6.01 cmt. a.
97. Id. § 6.03(6).
98. Id. § 6.03(7)(e), (h).
99. See id. § 6.02 cmt. b.
100. Id. § 7.01 cmt. a.
101. Id. § 7.01 cmt. d.
102. See id. § 6.01(2).
103. UNIF. PREMARITAL AGREEMENT ACT, 9B U.L.A. 369 (1987).
104. For a list, see IRA MARK ELLMAN ET AL., FAMILY LAW: CASES, TEXT, PROBLEMS 65-66 (3d ed. 1998).
105. Eleanor D. Macklin, Nonmarital Heterosexual Cohabitation, MARRIAGE & FAM. REV., Mar.-Apr. 1978, at 1, 6, quoted in Blumberg, supra note 71, at 1135 n.70.
106. See supra text accompanying notes 35-36.
107. ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.05.
108. See id. § 7.05(2).
109. Id. § 7.05(3)(a)-(c).
110. Id. § 7.05(5).
111. UNIF. PREMARITAL AGREEMENT ACT § 6(a)(2), 9B U.L.A. 376 (1987).
112. ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.05(4).
113. Id. § 7.05 cmt. b.
114. Id.
115. Id.
116. See, e.g., In re Marriage of Spiegel, 553 N.W.2d 309, 316-18 (Iowa 1996); Simeone v. Simeone, 581 A.2d 162, 165 (Pa. 1990).
117. See supra text accompanying notes 35-36.
118. ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.05(3)(c).
119. In many cases, a "plain language" requirement would be extremely difficult to satisfy. The ALI provides an illustration which purports to do so in the relatively simple situation in which the agreement undertakes merely to make clear that no marital property rights will arise from the marriage. See id. § 7.05 cmt. f, illus. 10. However, this illustration 10 fails to reflect section 4.05(1), under which a portion of any increase in the value of separate property is divisible on divorce "whenever either spouse has devoted substantial time during marriage to the property's management or preservation." ALI PRINCIPLES (Proposed Final Draft 1997), supra note 5, § 4.05(1). And the suggestion that the lawyer might add language explaining that inherited property is not usually divided "[i]f relevant to the parties' situation," ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.05 cmt. f, illus. 10, is puzzling for two reasons. First, it is directly contradicted by section 4.18, which gradually converts separate property into marital property, including property inherited during marriage. ALI PRINCIPLES (Proposed Final Draft 1997), supra note 5, § 4.18. Second, there is no guidance as to when an explanation with reference to inherited property is "relevant." How can the drafter anticipate the possibility of inheritance by either, spouse, and if so, on what basis? And a "plain English" statement explaining a waiver of the right to compensatory payments on dissolution under all five headings in chapter 5 would be next to impossible to draft. Thus, the net effect of the "plain English" requirement is to cast serious doubt on the validity of almost every agreement drafted without independent legal counsel for 'each party.
120. Under section 7.05(2), the party seeking enforcement "must show that the other party's consent to it was informed and not obtained under duress." ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.05(2).
121. Id. § 7.05(3)(b) (emphasis added).
122. See id. § 7.05(5).
123. Id.
124. Id. § 7.05 cmt. g.
125. 474 So. 2d 206, 207 (Fla. 1985).
126. Id.
127. ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.07.
128. Id. § 7.07(1).
129. See supra text accompanying notes 21-22.
130. ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.07(2)(a).
131. Id. § 7.07 cmt. b.
132. Id. § 7.07(2)(b).
133. Id. § 7.07(2)(c).
134. See id. § 7.07 cmt. b.
135. See id. § 7.07 Reporter's Notes cmt. b (citing 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)).
136. See ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.07 cmt. b.
137. Id.
138. W. Kip Viscusi, Using Warnings to Extend the Boundaries of Consumer Sovereignty, 23 HARV. J.L. & PUB. POL'Y 211, 226-28 (1999).
139. See id. at 218-28.
140. See supra text accompanying note 55.
141. See UNIF. PREMARITAL AGREEMENT ACT § 3, 9B U.L.A. 373 (1987).
142. UNIF. PREMARITAL AGREEMENT ACT § 6(a)(2), 9B U.L.A. 376 (1987).
143. Id. § 6 cmt. (citations omitted).
144. See ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.07, Reporter's Note cmt. b. The "confusion" is said to stem from two sources. First is the citation in the UPAA's comment to section six to a case in which unconscionability was tested at the time of dissolution of the marriage. Second is the quotation, in the same comment, of section 306 of the Uniform Marriage and Divorce Act, which states that "the court may look to the economic circumstances of the parties resulting from the agreement." UNIF. MARRIAGE & DIVORCE ACT § 306 cmt., 9A U.L.A. 250 (1998), quoted in UNIF. PREMARITAL AGREEMENT ACT § 6 cmt., 9B U.L.A. 377 (1987). However, as the reporter notes, this language refers to separation agreements and is therefore irrelevant to a discussion of premarital agreements. See ALI PRINCIPLES (Tentative Draft 2000), supra note 2, § 7.07 Reporter's Note cmt. b. To find confusion in this context is to exalt one of the many cases cited in the comment to UPAA section six and a clearly inappropriate quotation over the explicit language of the provision and comment.
145. UNIF. ANTENUPTIAL AGREEMENTS ACT 62 (July 23, 25-26, 1983).
146. Id. at 63.
147. Id. at 80.
148. Id. at 70.
149. See supra text accompanying note 45.