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Vanderbilt Law Review

First Page

397

Abstract

My daughter Laura will reach the median age of first marriage in about seventeen years.' Alison, her little sister, follows three years be hind. There is a good chance they both will marry. What are the odds that those marriages will work out well? Less than I would like. The strong statistical possibility of divorce is hard to ignore and the prospects upon divorce are not rosy. The economic repercussions of divorce for Laura and Alison could be grim, likely worse than those for their brother Christopher if he were to divorce.' What hope have I that this gloomy situation will brighten before they marry? Not much.

The American Association of Law Schools devoted an entire day's program at the 1991 annual meeting to the economic consequences of divorce, a topic of tremendous practical import to a large segment of society. Though the discussion informed and entertained the audience, it failed to respond adequately, as has much of the literature on divorce, to the fact that our melting pot may have melted us but it has not homogenized us. Deep differences abound. What different people want and expect out of marriage, and divorce, is not the same, probably ought not be the same, and in any case cannot be made the same.

Recognizing that one set of rules, no matter how complex, will not fit all marriages well, several scholars have suggested greater reliance upon, and enforcement of, antenuptial agreements. Allowing people to write their own enforceable marriage terms, with the legal rules serving as default rules, is an essential and important step in the right direction. I fear, however, that this step alone will have little practical impact. It is just too hard for most people to raise the subject of divorce. I propose another, and far more radical, step in the same direction: compelling marrying parties to determine the economic consequences of their own divorce. Perhaps it is time for scholars to stop debating what is best for couples and to start developing a legal and cultural frame-work in which couples can and will decide for themselves what is best.

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