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Making Family Exchanges: A Q&A with Martha M. Ertman

By Nicholas DiSabatino

image from www.beacon.orgIn Love’s Promises, Martha M. Ertman, a law professor at the University of Maryland’s Carey Law School with an extensive background in contract law, explores how deals and contracts create and transform all kinds of families. Love’s Promises forces us to radically “rethink our commonplace—often wrong—assumptions about how we love, commit, trust, and thrive in relationships,” writes Beacon Press’s Queer Action/Queer Ideas editor, Michael Bronski

In advance of my wedding this month, I thought it would be beneficial to check in with Ertman to see how couples (including yours truly) can use her book as a roadmap to “plan for the expected and the unexpected.”

Nicholas DiSabatino: In Love’s Promises, you talk about the difference between contracts and deals, with contracts being enforceable by the courts and deals being as simple as “I pay the bills and you do the grocery shopping.” In my own relationship with my fiancé, Josh, we have a sort-of unspoken rule. He’s always going to be the brains behind dinner, planning ahead with Ms. Rachael Ray’s 30-minute meals (because who has time for more prep than that?) while I’m always on clean-up patrol. Should we put this deal in writing?

Martha M. Ertman: First, congratulations!! It’s an amazingly exciting thing to find someone you want to spend your life with, and better still one with whom you enjoy dinner rituals. Your deal is probably the most common one of the many I read and heard about while writing Love’s Promises. While some couples do put this kind of domestic swap into writing—sometimes a playful document that no-one expects will be legally binding—you’re also typical in making an implicit deal through your actions over time. That’s the same way my wife Karen and I came to put gardening on my to-do list and balancing the checkbook on hers. The most important thing is that you and Josh both see the deal. Then if you start sloughing off on the dishes he may suggest you step it up or take over one of his tasks. Grocery shopping perhaps??

ND: You mention the idea of a “pair-bond exchange” many times throughout the book, where one half of the couple contributes financially to the relationship, and the other half contributes in other ways, such as in caregiving, homemaking, etc. If both partners contribute financially to the relationship (yet one contributes slightly more), does that automatically mean the other partner should be chipping in more at home? I.e. Do I have to take out the trash just because he earns more than I do?

MME: I’d resist the “have to” frame, both for domestic tranquility and because the whole idea behind family exchanges is that there’s give and take on both sides. One reason lots of people hate lawyers is that we often say “it depends.” In contract law, we talk about “reasonable expectations.” Here, it seems reasonable that the person who is working longer hours could get a pass on some domestic tasks. The trick is to talk through when things seem out of whack. As Michelle Obama put it to Barack when his star was just rising, “You’re gone all the time and we’re broke? How’s that a good deal?!”

DiSabatino-Ertman Q&A
Nicholas DiSabatino (right) with fiancé, Josh

ND: One of the most nerve-wracking aspects of getting marriage is the dreaded prenup question. You cite San Francisco Giants’s Barry Bonds and the drama that unfolded with his former wife, Sun, when she signed a hastily put together prenup opting out of his property and earnings should they divorce. Prenups, like contracts, still carry this negative connotation to them. Should I be thinking about getting a prenup even though I’m not in a stage in my life where I have “property” or really major earnings? (He’s getting a box of X-Men comics and I’m keeping the cat if we split up.) How should couples go about starting this conversation in a positive and constructive manner?

MME: I’m so interested to hear that so many people consider prenups that it’s become a “dreaded question.”  Like you, many people—probably most—feel that it’s unfriendly or cynical to talk about divorce when you’re getting married. You’re also right that big money can up the pressure for a big prenup. On the front end of your adult life, most of us have more debt in student loans than assets. Yet having modest means can make even seemingly little losses like those X-Men comics or the cat really big. Do you really want to fight about the cat if you can avoid it? Better still, you can build in ways to resolve disputes—therapy, mediation if things get really heated, a cooling-off period before moving out—that could keep you together. It can be hard to have these conversations, but it can also bring you together to talk through your fears about bad stuff happening like a litigious break-up and how to avoid it.

ND: One of your main goals throughout the book is to dissuade readers of the common misconceptions of contracts. You say that we often think of contracts as “selfish, cold, and calculating.” Why do you think we’ve held onto these misconceptions? How did putting your own relationship within contract terms help build and sustain your family?

MME: I’ve thought a lot about why we so assiduously mask exchanges in family, and have one answer that’s emotional and the other that’s cynical. Emotionally, we want to believe in unconditional love, that our partners are like our mothers and give, give, give, then give some more without ever expecting something back. That’s got to be why Shel Silverstein’s book The Giving Tree is so popular.  The cynical (or feminist) explanation for the way both law and policy wrap up family exchanges in bright shiny gift rhetoric is that we also take our mothers for granted. I never read The Giving Tree to my son because to me it reads like a horror movie where a child dismembers his mother limb by limb and she keep offering up another. In my book, the chapters about cohabitation and marriage show that family law has bought into both myths and should change course to give mothers and other caretakers their due.

ND: Lastly, my fiancé and I have already brought up the idea of having children (not yet though…maybe in five years or so…or ten if he has his way).  Throughout the book, you talk in detail about the various ways nontraditional families can have children either through reproductive technology or adoption. How long does the adoption process generally take? What should couples do to prepare themselves in the meantime, and what kinds of agreements/contracts should they consider?

MME: Thinking through these questions shows that you and Josh will make great parents when the time comes. And you don’t even have to use birth control to time it right! Still, the adoption process doesn’t provide a certain time line. If you are willing to adopt a special needs or older child, then the wait is likely shorter than if you’re hoping for a healthy infant. Likewise, domestic and international adoptions can follow different time lines. In the meantime, it sounds like you have already made what lawyers call an “agreement to agree” in five or ten years about whether and how to become parents. Keep talking and checking out what feels right, keeping in mind that you can agree to lots of different arrangements. If, say, one of you is more driven to be called “Dad,” then perhaps it will make sense to have that one be in charge of stuff like pediatrician appointments and day care drop-off.

About Martha M. Ertman

image from www.beacon.orgMartha M. Ertman is a law professor at the University of Maryland Carey Law School and has taught, written, and spoken about contracts and family law for two decades. She edited Rethinking Commodification: Cases and Readings in Law and Culture and lives in Washington, DC with her family. Follow her on Twitter at @MarthaErtman.