Family law historically, and still today, remains a paradigm of status rather than contract. Many family law obligations and rights are connected to a status that is either not chosen (for example, child) or a status whose holder has no or limited power to alter the package of rights and duties once the role is taken up (for example, parent or spouse). And many of the actions one takes within or across these status boundaries-for example, adoption or divorce-have also been established by an intricate set of state-established rights and duties that one has limited or no power to alter. In the United States (and in many other countries, as well, although the United States is the focus of this article), individuals now have significant power through agreement or other choices to alter domestic rights and obligations. For example, there are premarital agreements, marital agreements, separation agreements, open adoption agreements, co-parenting agreements, surrogacy agreements, formal and informal gamete donation arrangements, and agreements on the disposition of frozen embryos. This article explores which family-related agreements are (or should be) enforceable by the state. It is obvious, but still worth noting, that people can enter agreements on family matters with partners, spouses, children, and others that may work perfectly well without the need or desire for intervention by lawyers and courts. In the United States, the legal and social situation is such that people can arrange their family lives in many and diverse ways with little fear of legal or social sanction.
Bix, Brian, Agreements in American Family Law (2013). 4 International Journal of the Jurisprudence of the Family 115 (2013).