Rethinking Premarital Agreements: A Collaborative Approach

The legal profession—in viewing entry into a premarital agreement as an antagonistic process—has erected additional ethical barriers to hiring an attorney to prepare a premarital agreement. For those couples that do decide to pursue a marriage contract, the barriers put in place by the common law and by the legal profession inject unnecessary expense and adversarial decision-making to what could—and should—be a relatively inexpensive and collaborative process. Common law and the legal profession have, in a sense, created a self-fulfilling prophecy. By adopting a dual-representation, dissolution-focused model for entering into premarital agreements, we increase the chances that agreements will be coercive, stressful, and will fail to reflect the expectations of the spouses. I argue that these barriers are premised on sexist and outdated notions—notions that typically do more harm than good. Removing these barriers and empowering couples to decide how to arrange their financial affairs would have an overall positive effect on relationship stability and equality of money management within the relationship. Part II examines the traditional arguments against premarital agreements and asserts that many of these arguments are outdated and unsupported by current data. Part II also considers some of the benefits afforded by premarital agreements. Part III examines the doctrine of unconscionability—one of the most significant barriers to entry into and enforcement of premarital agreements. As Part III explains, common law has created two proxies for assessing conscionability: financial disclosure and independent legal representation. I argue that both proxies are founded on misguided, paternalistic, and gendered notions. Part IV describes an additional unnecessary barrier erected by the legal profession—Rule 1.7 of the Model Rules of Professional Conduct. Part V describes a proposed collaborative approach towards premarital agreements and concludes