Within the past fifty years, there have been numerous articles written about the validity and enforceability of antenuptial agreements. Such agreements are generally favored by the law when prospective spouses privately contract to vary, limit, or relinquish certain rights which they would otherwise acquire in each other's property or in each other's estate by reason of their impending marriage. Traditionally, this antenuptial agreement is typically made by older people who are about to be remarried, and who have acquired considerable property from a prior marriage that they wish to control.
However, unless the antenuptial agreement provisions fall squarely within this rather limited parameter, there is a good chance that a court may declare the antenuptial agreement to be illegal and void as against public policy, especially if the agreement has included any antenuptial contingency planning in case of a later divorce or marital separation.
In fact, judicial attitudes toward many antenuptial agreements have become so unpredictable and indefinite, that widespread and consistent use of the antenuptial agreement has traditionally been precluded in any form other than to settle the disposition of property and estate rights on the death of one or both of the spouses.' Within this general framework of what does and does not constitute a valid antenuptial agreement, any divorce-planning provisions in antenuptial agreements, until very recently, have almost always been held by American courts to be void as contrary to a rigid "public policy" rule, purportedly upholding the status of marriage by preventing the parties from contracting a private agreement which would facilitate a future divorce or legal separation.5 The legal rationale behind this "public policy" rule, though seldom clearly articulated in the cases, may be summarized under one of two major assumptions:
(1) Antenuptial agreements which include provisions related to the possibility of divorce tend to "promote" or "encourage" that divorce; or
(2) Certain duties incident to marriage, such as alimony or spousal support and maintenance, are of such public importance that they cannot be left to the parties' private contractual control in an antenuptial agreement.
This article will analyze these two "public policy" rules by using examples of various judicial decisions to test each rule by its legal rationale and public policy justification; it will demonstrate through these examples that a traditional judicial subjectivity has often misinterpreted and misapplied these rules; and it will conclude that divorce-planning in antenuptial agreements is a realistic and objective legal concept whose time has come.
Peter Nash Swisher, Divorce Planning in Antenuptial Agreements: Toward a New Objectivity, 13 U. Rich. L. Rev. 175 (1979)