Are Premarital Agreements Really Unfair: An Empirical Study of Premarital Agreements

Abstract

Are premarital agreements categorically unfair? Critics of premarital agreements cling to the (unfounded) belief that premarital agreements are categorically one-sided, coercive, and designed to benefit the wealthier spouse — usually the man. Courts, legislators, and scholars have too often relied on assumptions about premarital agreements without delving in to the facts. They have looked almost everywhere to support their views, except for the one place that really matters: the actual agreements. The result, predictably, is a paternalistic system predicated on a near religious belief that women who sign premarital agreements are uneducated, unsophisticated, economically dependent actors who need the state to protect them from the overreaching of their husbands and their own stupidity. For the few women this paternalistic system might protect, it harms a great many more by reinforcing negative stereotypes and eroding individual autonomy. This paper builds on my previous work and offers something that has been sorely lacking in the field — empirical data. This paper presents my initial findings of a study involving all of the premarital agreements between opposite-sex couples recorded in Jefferson Parish, Louisiana between January 1, 2013 and December 31, 2016 — a total of 474 premarital agreements. My findings cast considerable doubt upon many of the stereotypes about the parties that enter into premarital agreements. The quintessential stereotype of a couple with a premarital agreement is the rich businessman and his (much) younger “trophy” bride. For the couples in this study, however, large age discrepancies are the exception rather than the rule. We have long assumed that premarital agreements are most common in second marriages. Although that is generally true for the couples in this study, the reality is a good deal more nuanced. Nearly a quarter of the agreements in this study were entered into by two spouses with no prior marriages. Longstanding assumptions about substance and procedure are also challenged by my study. We have been suspicious of premarital agreements that are signed shortly before the wedding out of fear that they result from duress or coercion. Yet, the vast majority of the couples in this study signed their agreements shortly before their weddings. Isn’t it more likely that these couples procrastinated rather than coerced? We have long assumed that premarital agreements involve the waiver of property rights and spousal support by the poorer spouse for the benefit of the richer spouse. Again, the data paint a more complex and interesting picture.