Reviewing Premarital Agreements to Protect the State’s Interest in Marriage

Note — Volume 91, Issue 2

91 Va. L. Rev. 535
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Courts and commentators have struggled with the question of whether substantive review of premarital agreements is necessary and, if so, why. Those who eschew substantive review generally equate it with legal paternalism. To the extent that the justification for substantive review rests on notions of cognitive limitations and bounded rationality, it is subject to the criticisms of legal paternalism in general.

Stronger support for substantive review can be found in notions of the public interest in marriage. Furthermore, a focus on the state’s interest in marriage would enable lawmakers to more narrowly tailor the scope of review to protect that interest without unnecessarily infringing on the freedom to contract. The question of the state’s interest in marriage can be defined prospectively and in more concrete terms than the question of whether the parties made a rational decision.

This Note begins by reviewing the historical and current status of premarital agreements concerning the division of property and provision of support following divorce. An analysis of recent court decisions and legislation reveals the extent to which the law continues to monitor the substantive fairness of premarital agreements. Next, the Note examines the arguments for and against paternalism in the premarital context by reviewing recent scholarship on behavioral decision theory. It concludes that procedural safeguards can adequately protect against irrational decisionmaking. Finally, the Note looks at the state’s interest in marriage, how premarital agreements implicate that interest, and ways to efficiently protect that interest.

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  Volume 91 / Issue 2  

Revitalizing the Forgotten Uniformity Constraint on the Commerce Power

By Thomas B. Colby
91 Va. L. Rev. 249

What is Textualism?

By Caleb Nelson
91 Va. L. Rev. 347

Textualism and Legislative Intent

By John F. Manning
91 Va. L. Rev. 419

A Response to Professor Manning

By Caleb Nelson
91 Va. L. Rev. 451