What Does Love Have to Do with It?

The musical, Fiddler on the Roof, set in Tsarist Russia in 1905, and based on Tevye and his Daughters (or Tevye the Milkman) and other tales by Sholem Aleichem, best captures the change in marriage choices and prenuptial contracts affected by the advent of the industrial revolution and the rise of "romance" in early nineteenth century Europe. The story centers on Tevye, a poor milkman, the father of five daughters, and his attempts to maintain his family and religious traditions while outside influences encroach upon their lives. He must cope with the strong-willed actions of his three older daughters, as each one's choice of a husband moves further away from the customs of her faith. In the end, after much soul searching, Tevye relents to the marriage of Perchik and his daughter Hodel. The world is changing, and he must change with it. Tevye explains these events to his astonished wife Golde. "Love," he says, "it's the new style." That changed in 1968, when a Florida appellate decision followed precedent in invalidating a prenuptial agreement, but a dissenting judge indicated that the contract should have been upheld as "not in contemplation of divorce, but in contemplation of marriage." Posner v. Posner, 206 So. 2d 416, 420 (Fla. Dist. Ct. App. 1968) (Swann, J. dissenting), rev'd, 233 So. 2d 381 (Fla. 1970). On appeal, the Florida Supreme Court agreed with the lower court dissent and held that prenuptial agreements settling alimony and property rights upon divorce are not void as contrary to public policy. Thus, the era of prenuptial agreements began. In a second study, "Why Are There So Few Prenuptial Agreements?" Harvard Law School John M. Olin Center for Law, Economics and Business Discussion Paper Series, Paper 436 (2003) (http://lsr.nellco.org/harvard_olin/436), Heather Mahar found that in addition to what psychologists refer to as "optimism bias" (optimism in the face of reality, a well-established illusion that one's future is rosier than it really will be), respondents felt that requesting a prenuptial agreement demonstrated uncertainty about the success of the marriage. Respondents recognized that the national rate of divorce was around 50 percent, yet they believed that their own chance of divorce was only 11 percent. Sixty-two percent of respondents believed that requesting a prenuptial agreement reflects uncertainty about the success of the marriage. That is, individuals who believe that they are significantly less likely than the average per