Martha M. Ertman (University of Maryland Francis King Carey School of Law) has posted Marital Contracting in a Post-Windsor World (Florida State University Law Review, vol. 42, p. 479 (2015)) on SSRN. Here is the abstract:
This article explores what marital contracts might look like in a post-Windsor world by zooming in on a common exchange in which partners swap financial support for care of home, hearth, and children alongside a promise of sexual relations. I call it the “pair bond exchange.” Because it plays an important role in marriage and other long term relationships, focusing on it helps answer the question of whether gays will change marriage or marriage will change gays (or both). In 2014, a decade after Massachusetts became the first state to recognize same-sex marriage and just a year into federal recognition of marriage equality, the terms of the average pair bond exchange in gay couples differ from the terms of most straight couples’ pair bond exchanges. Unless marriage equality makes gay couples act like straight spouses, that difference could lead same-sex couples more frequently to contract around default family law rules like sharing retirement savings that accrue during the marriage or providing post-divorce income sharing through alimony. The article reviews the role of exchange in marriage, quantitative and qualitative data comparing straight and same-sex relationships, and predicts that increased parenthood is likely to change pair bond exchanges in same-sex couples.