Fifteen Eighty Four

            Many of our interactions with other people are structured by formal or informal agreements:  we agree to work for a company for a set wage, we pay other people to fix our car or to dry-clean our clothes, we agree to meet a friend for lunch, and spouses and neighbors may take turns picking up the children from their sports practice.  All of these voluntary transactions are common and socially acceptable, though only some of them could be subject to legal enforcement (as a breach of contract) should one side not live up to what had been agreed.  The focus of Families by Agreement is agreements that parties intend to be legally enforceable:  premarital agreements, marital agreements, separation agreements, co-parenting agreements, open adoption agreements, surrogacy agreements, sperm and egg donor agreements, and many more. There has been a significant increase in such private ordering – rights and obligations set by the agreement of individuals rather than imposed by the state — in domestic relations across a range of topics. This book aims to offer an overview of those topics, and the decisions that have been made, by courts, legislatures, and other legal officials, either to constrain or encourage such private ordering.

            The argument for private ordering is a general one: that parties (if competent adults) are in the best position to know what is in their interests and to protect those interests.  What family structures work best for some, or even for most, may not work best for all. Additionally, there is that standard (libertarian) argument is that if parties want to enter an (enforceable) arrangement on terms others may consider unfair, one-sided, or even oppressive, the parties should still have the option to go forward on the chosen terms.

            One traditional response to private ordering in family law had been to argue that family law is special (in certain ways), and because it is special, private ordering should not be allowed or should be restricted and regulated in significant ways.  While there are still concerns distinctive to family law (in particular, the state interest in protecting children), today many of the concerns raised are ones that are raised generally about private ordering, rather than concerns distinctive to family law.  The worries about agreements between spouses, or between birth parents and adoptive parents, are comparable to the concerns raised about agreements between businesses and consumers, employers and employees, and so on.  The concerns are that agreements can be oppressive and exploitative, and that one party to the agreement has neither good knowledge of the terms nor any real choice about whether or not to agree to those terms.  The debate about family law agreements thus parallels current debates about regulation or enforcement of pre-dispute (mandatory) arbitration provisions and boilerplate provisions generally.  Government has duties to protect the vulnerable, and an interest in encouraging fair terms.  At a minimum, courts are reluctant to see themselves as complicit in injustice.

            The book looks at transactions separately, because the concerns vary across different types of agreements.  For example, the primary concern with premarital agreements is cognitive bias (“bounded rationality”), in that parties about to be married (especially those about to marry for the first time) may not be able to think rationally about that marriage ending in divorce, and the consequences of such a divorce.  The primary concern of marital agreements or post-adoption contact agreements (“open adoption”) is coercion.

            One provocative example of a family agreement the courts rejected is Stutz v. Stutz, a case decided by the Tennessee courts in 2005.  In the case, the courts ultimately refused enforcement to an agreement in which the wife had waived almost all of her potential post-divorce claims against the husband in return for his consenting to adopt a child.  When the couple later divorced, the husband sought to enforce the agreement, and the courts refused.

            It is useful to try to pin down what is – and what is not – problematic about the agreement in that case.  Imagine, first, a couple who is thinking about adopting, and one spouse is much more enthusiastic than another, and assume nothing unusual or troubling about the reasons the spouses have for the positions they have taken.  What if the spouse favoring adoption said to the one opposed:  “I really want to adopt this child, and I understand you have reservations; however, if you will assent to the adoption (and do your fair share of the co-parenting), I will return the favor” – perhaps assenting to move to a different city, or no longer objecting when the other spouse works long hours evenings and weekends, allowing an in-law to visit for extended periods, etc.?  This is the sort of negotiation, the sort of trading, one finds in marriages all the time, on all sorts of topics.  So, when the Stutz court indicates that trading off assent on adoption is itself problematic, I do not think that this is correct.

Part of the concern is likely the “commodification” aspect.  We simply react more strongly the more things look like a cash sale of something that we think should not be up for sale.  It is one thing if I say to my spouse:  “I will be o.k. with the family moving to another city so you can accept a promotion, if you go along with the family getting a dog.”  However, it seems less acceptable if I say, “I will go along with moving for your job if you pay me a hundred thousand dollars.”  A final part of the court’s concern focuses on how much the wife gave away.  If the agreement had been enforced, she would have received little from the marital estate upon divorce, leaving the former wife with significantly fewer resources to look after herself and her child.  We prefer our agreements to be indirect or implicit if they involve money.  We reject payment to obtain or give up parenting time, or to have another person become or resume being a romantic partner, but generally tolerate the same things if they are part of separation agreements and cohabitation agreements, and if the payment is labeled as property rights or alimony promises. 

            Families by Agreement is an exploration of domestic agreements that explores the topic at multiple levels:  the statutory and case decisions establishing the (current) law, as well as the policy and moral arguments that might justify either significant reform or retaining the status quo.