Private Ordering and Family Law

Abstract

Until recently in American family law (and the family law of most countries), private arrangements to alter the legal rules surrounding family status were rarely enforced. There was, of course, “private ordering” of a basic sort: e.g., one chose whether to marry or not, and whom to marry, but once one married, the legally enforceable rules of marriage, the ability to exit through divorce or annulment, the financial obligations upon divorce, and so on, were all set by the state, which might also limit the power of the parties to distribute their own property upon death, as with a spouse’s “statutory share.” Similarly with parenthood: one could choose whether to have (and whether to adopt) children, but once one was a parent, one’s obligations and rights were set by the state, which would also determine the limited circumstances and set terms under which one could surrender parental rights to a child.

Much has changed in recent decades, with American states increasingly allowing different types of private ordering in a range of different family law areas. One can speak of premarital agreements, marital agreements, separation agreements, open adoption agreements, co-parenting agreements, agreements on the disposition of frozen embryos, and agreements to arbitrate disputes arising out of any of the above agreements.This article offers an overview of the changes and limits to private ordering in American family law, while considering the extent to which these changes have been a positive development.

Keywords: family law, contracts, premarital agreements, surrogacy agreements, coparenting agreements