Martha M. Ertman - Loves Promises: How Formal and Informal Contracts Shape All Kinds of Families

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For my son

I give you myself before preaching or law;
Will you give me yourself? will you come travel with me?

WALT WHITMAN

The LGBT movement in the United States has fought hard to ensure that everyone has the right to enter into legal marriage. That fight continues and has made enormous strides. Still, as we all know, relationships are complicated: emotionally, romantically, financially, and legally. We also know that while marriage can tie a good many knotsparticularly on issues of legal and fiscal responsibility to one another and to childrenevery relationship has much that is presumed, unspoken, and unimagined. Martha Ertmans achievement in Loves Promises: How Formal and Informal Contracts Shape All Kinds of Families is to give all couplesLGBT or heterosexualas well as adoptive families and single parents a series of roadmaps to plan for the unexpected and the expected.

With an extensive background in contract law, Martha Ertman has provided theoretical and actual agreements that couples can enter to consciously acknowledge what they need and can expect from one another. These agreementsvariously called deals and contracts, depending on the relationship, presumptions, and needs of the people involvedencourage and enable couples to face their future with clear vision. By sharing her own story, Ertman shows and not just tells how contracts create and transform families.

Loves Promises is a crucial step forward for the family equality movementwhich has focused significantly on marriage equality for so longbecause it acknowledges that all relationships are deserving of respect, even as they have different needs and require different solutions to problems. Drawing on a wealth of case law, personal experience, an ethic of fairness, and common sense, Ertmans invaluable book forces us to radically, and productively, rethink our commonplaceoften wrongassumptions about how we love, commit, trust, and thrive in our relationships.

Michael Bronski

Series Editor, Queer Action/Queer Ideas

The big whoop in contract law, I tell my students, is drawing a line between the kinds of promises that courts enforce and the ones they wont. But I dont tell them that contracts and the mini-contracts I call deals are a big whoop in my life. They brought me my family and job, and gave my son his second mother. I had no idea that contracts would be so transformative twenty-five years ago as I soaked up the law with other first-year students.

Ive made a career out of teaching contracts and writing about what they bring to family law in footnote-heavy law reviews consumed by the legal community. Yet it continues to surprise me that so many people, judges included, still view love and contracts as fundamentally opposite. Love is open-ended and generous, they insist, while contracts are selfish, cold, and calculating. This book challenges that myth by showing that the many contracts and deals that shape families not only exist but are also deeply beneficial. The fact is that everyone has a familyoften more than oneand whether youre married or living with someone, are heterosexual or LGBT, or become a parent through sex or alternatives like adoption and reproductive technology, contracts and deals help you become and stay a family and also, if necessary, end the relationship. Recognizing this fact helps people tailor their families to match their daily lives, and ignoring it can cause a devastating mismatch between the family you thought you had and the legal reality.

Family law rules have to allow some tailoring because love comes in different packages. There is the most common model of being heterosexual and married, with kids conceived at home instead of a doctors office. But there are alternative and increasingly popular models, which can be viewed as Plan B. Unmarried couplessame-sex or different-sexlive together, and couples as well as singles become parents through adoption and reproductive technologies. Many families are a mix of these models, like a married same-sex couple or a husband and wife who adopt.

This book argues that contracts and deals facilitate that variety by helping people create and sustain families. Moreover, family law can, should, and increasingly does recognize that fact. Once you uncover the central role of contracts and deals, you can see families in a new light. Instead of talking about the family as one kind of relationship honored above all others by Nature or Godmarriage, heterosexuality, genetic kinshiplaw and society can update that black-and-white two-dimensionality to acknowledge the colorful, 3-D variety of life as its actually lived. That means letting go of moral judgment aimed at uncommon families and replacing it with a view of variety as morally neutral.

But neutrality is not an end point. Removing the clutter of moral judgment makes space for noticing the way that honoring family variety gets vital care to more peopleespecially children and vulnerable adultsand also supports communities. Its better, this book argues, to let people decide for themselves when, whether, how, and with whom to form their most intimate relationships than to cede that power to either church or state.

Contract is legalese for the kind of agreement courts enforce. Courts refuse to enforce some agreementslike selling sex or babiesbecause they are not truly consensual or because they corrupt something sacred, such as the idea that people are different from objects. I call these not-legally-binding agreements deals. Some deals are also crimes, like prostitution and baby-selling, but most are entirely lawful, just too small or vague to bring before a judge when they are breached. More important, the people involved never expect them to get to court. Still, they matter. Think of gambling debts from a neighborhood poker game, or agreements to take turns carpooling the kids to soccer. No one would sue if the agreements were not honored, yet these deals structure relationships. Deals can be big things, like agreeing to inseminate, or casual, implicit, daily household exchanges like I pay the bills and you do the grocery shopping. They shape intimate relationships because they create expectations of reciprocity and grounds for changing the relationship when one person isnt holding up his or her end of the deal.

One of the biggest changes over the last few decades is that family law has upgraded a number of deals to contracts. Starting in the 1960s and 70s, both law and society began to allow people to make premarital contracts, living-together agreements, and contracts to become parents through reproductive technology. More recently, family law has recognized more open adoption contracts.