Minnesota Law

Fall 2023
Faculty Focus

Author in Question: Professor Brian Bix

Families by Agreement: Navigating Choice, Tradition, and Law

Professor Brian Bix

Published by Cambridge University Press, Professor Brian Bix’s new book, Families by Agreement: Navigating Choice, Tradition, and Law, explores the increasing legal recognition of private ordering in American family law. Today, individuals can alter the terms of marriage and divorce through agreements, and courts sometimes allow individuals to create, waive, and alter parental rights by way of surrogacy, open adoption, and co-parenting agreements, among other mechanisms. But when is such private ordering beneficial to all, and when should it be regulated or prohibited? This important work examines these questions in accessible detail to provide an important resource for those who litigate in these areas and those who want to be thoughtful participants in these moral and policy debates. 

You’ve written several books. What inspired you to write this book? 

The connection, interaction, or overlap between family law and agreements, or contract law, has been an interest of mine for a very long time. It was the topic of one of my first law review articles, 25 years ago. The topic includes a cluster of issues I have revisited in many different forms since then, and I thought that it was time to try to view family law agreements in a broader and more comprehensive way. 

What are some of the issues this book explores? 

It looks at issues of binding agreements across domestic relations law, including common law marriage, cohabitation agreements, premarital agreements, marital agreements, separation agreements, coparenting agreements, surrogacy agreements, agreements dividing pre-embryos, and open adoption agreements.

What differentiates this book from your other work in family law? 

This book is comprehensive in the types of agreements discussed, in order to try to derive more general conclusions about policy and morality for such agreements. 

What are a few key takeaways from your book? 

That the relevant moral and policy considerations do vary significantly from one type of family agreement to another, so that one cannot justify a single general position, for example enforcing all such agreements or refusing enforcement to all agreements. Also, the book urges that in nearly every area, the enforcement of agreements will be beneficial if the right sort of regulatory restrictions — procedural safeguards and mandatory provisions — are in place.

Who is the target audience for the book? 

I hope that it is a book that will be equally valuable to law students, family law scholars and family law practitioners. 

What is something you were surprised to discover when writing this book? 

Both family law and contract law are primarily matters of state law, not federal law, and my research for the book displays how widely states vary in their treatment, with many states authorizing or even encouraging agreements that other states refuse to enforce or even criminalize.

What do you hope to accomplish with this book? 

I want to create a resource that allows interested students, practitioners, and scholars to consider all aspects of family agreements: doctrinal rules, policy considerations, and moral arguments. 

How would you describe your book to someone who is unfamiliar with the subject matter? 

Formal and informal agreements are pervasive in our domestic lives. When conflict occurs and one or both parties seek to enforce an agreement, the law varies from a complete refusal to enforce, through selective enforcement and regulatory rules, to strong support for enforcement. This book is about why the law’s response varies, and where the rules should be changed. 

Did you encounter any challenges or barriers when writing your book? 

My own experience has been, across many such projects, that books are often easy to start but difficult to finish.