Mushy Language and the Limits of Intimate Agreements: Reflections on Love’s Promises
It is an honor to be invited to comment on Professor Martha Ertman’s thought-provoking and excellent book. I have taught family law for 15 years and devote a lot of class time to assisted reproduction, adoption, palimony, and prenuptial agreements—in other words, contracts. However, until I read Love’s Promises, I, like many others, did not fully appreciate the ubiquity of contracts in families and family law. After all, we rarely refer to agreements between intimate partners as “contracts”—apparently preferring the softer “agreement” as in co-parenting agreement, cohabitation agreement, or prenuptial agreement—precisely because we don’t think (or want to think) about contracts and love in the same sentence. Professor Ertman deftly demonstrates that we all rely on contracts and non-legally binding agreements (which she calls “deals”) in our intimate relationships to our benefit. I found it impossible to read Love’s Promises without examining my own family relationships and noticing how many contracts and deals we have created. But in the end Love’s Promises is a love story between co-parents, between a parent and a child, and between intimate partners—a love story made possible by carefully thought-out contracts.
I was particularly captivated by Professor Ertman’s insistence on including “mushy” language in her family’s contracts despite her lawyer’s objections. As lawyers, we are taught to keep emotions out of the law, especially legally binding contracts. Mushy intentions are not enforceable but Professor Ertman poignantly illustrates the value of including them in family contracts—to decrease the risk that such contracts will ever see the inside of a courtroom. She explains that by vividly describing her son’s relationship with her partner (and future wife and co-parent), it would remind all the parties “of the full hearts” with which they entered into their marriage and co-parenting agreement and “decrease the likelihood of an acrimonious, expensive legal fight.” Imagine if all separating parents had mushy language to draw upon and hold them back in a painful separation in which human instinct is oftentimes to lash out? Might it decrease hostility between parents and the concomitant harm to their children?
Professor Ertman and her son’s co-parents are lawyers so it is not surprising that they embraced contracts to create and sustain their family. Yet, many individuals balk at the thought of entering into contracts with their intimate partners. It is one reason why many couples never enter into cohabitation, co-parenting, or premarital agreements even when one or both persons believe they are necessary. It just doesn’t seem very romantic and can appear cold and self-interested when we prefer to think of family members as selfless. Yet, a contract that describes the parties’ intentions and their emotions is quite romantic and signals that it is a tool that can affirm and sustain their love and family.
One of Love’s Promises most important contributions to families and family law is its debunking of the myth that caregiving is always a gift instead of an exchange. Professor Ertman’s proposed solutions, however, demonstrate the limitations of contracts when individuals are blinded by love and trust or where one party has significantly greater bargaining power.
Professor Ertman demonstrates how the law’s treatment of caregiving as a gift causes significant harm to spouses (generally wives) who sign prenuptial agreements that divest them of their rights to share the marital property. To illustrate these harms, she describes the prenuptial agreement signed by Barry Bonds and his fiancée, which allowed him to keep all of the earnings from his $43 million contract with the San Francisco Giants when their marriage ended. Ertman argues that, by contracting out of the duty to share marital earnings, Bonds forfeited the right to treat his wife’s homemaking services as a gift and a court should compensate her for the value of her services. While this approach is preferable to the current one in which the homemaking spouse who signs a prenuptial agreement receives only what she bargained for in the contract, it is still deeply unsettling. Under Professor Ertman’s approach, the homemaking spouse will be compensated for her contributions, but given the law’s devaluation of homemaking services, she is unlikely to receive a fair share. The alternative—not enforcing prenuptial agreements that steer too far from marital property sharing rules—would seem to unduly restrict individuals’ abilities to organize their families and family exchanges in ways that work best for them. However, given the evidence that individuals are less likely to protect their own interests when negotiating family exchanges, a contract-based approach might leave some spouses worse off than a bright-line rule prohibiting property-hoarding contracts.
Professor Ertman acknowledges that contracts could further disempower economically and emotionally vulnerable individuals with little bargaining power such as a homemaker spouse, a birth mother seeking post-adoption contact, or a sperm donor seeking a relationship with the child. She asks “whether these dangers are sufficiently dire to cause us to revert to old rules” in which the law did not allow parties to contract around default rules. Love’s Promises demonstrates that the answer is clearly “no.” Families have always entered into contracts even when the law refused to enforce them and they will continue to do so. More importantly, families come in all forms—one legal rule does not fit all. As Professor Ertman shows, if we value pluralism, there is no better mechanism than contracts to accommodate the needs of diverse families.