Time Travel: Prenups and Identity

Call it serendipity. 

It's curious and amazing how two random unconnected events can converge to provide a new way of thinking. 

I have been involved in a case where the parties signed a prenup roughly 35 years ago. The consequences of enforcement involve millions of dollars. 

At the same time, I’m reading David Edmonds' mind-blowing biography of the late  philosopher, Derek Parfit. 

                                                    Derek Parfit

Among many other things, Parfit addressed the question of identity. Am I the same person I was when I was a child? And will I be the same person 20 years from now? Not really. Parfit theorized that identity isn’t static; rather it is a continuum of psychological states. Our psychological state in our 20s isn’t the same as in our 50s. 

Parfit’s thoughts on identity led me to question longstanding public policy favoring enforcement of premarital agreements. 

While I appreciate notions of freedom of contract in a commercial sense, contracts governing intimate relationships are different. Typical mercantile contracts cover a single or a series of related transactions. Premarital agreements, on the other hand,  may span a lifetime. And at least according to Parfit, the parties who execute the document today may be different persons at the time of enforcement. Parfit even questioned whether a person who commits a crime today and doesn’t get caught until many years later should suffer the same sentence as one caught red handed because a “different” person may have committed the crime years ago. Interesting stuff. 

Back to prenups. During most of my career, public policy has unquestionably favored enforceability. Since the adoption of the Uniform Premarital Agreement Act (which my home state of Illinois follows), if you check all of the boxes, agreements are virtually unbreakable. Prior to Illinois’ adoption of this act in 1989, prenups were governed by common law and could be invalidated if enforcement resulted in an unfair outcome. Maybe it's time to revisit that concept.

Acknowledging the values of accountability, freedom of contract, and certainty, I now question whether those factors outweigh real life considerations. Premarital agreements, often signed in haste or out of emotional desperation, are executed by parties who are oblivious to the future twists and turns of a long term relationship. Plus, and importantly, is the person who signs this agreement the same person, several children and half a lifetime later? I tend to agree with Professor Parfit…not likely. 

I don’t necessarily think premarital (or post marital agreements) should be rejected entirely. But I do question whether variable standards of enforcement should be employed. Perhaps a more relaxed standard of enforcement for longer term marriages is appropriate. 

I’d love to know your thoughts. Maybe it's time to re-examine this long standing policy favoring enforceability. Reach out to me and give me your input.