By John A. Fiske
I love “The Generous Prenup.” It reminds us that we can take family law problems to another level, one not taught in law schools: generosity.
Being generous as a lawyer or as a mediator makes the practice more enjoyable. Encouraging clients to be generous is not inconsistent with our lawyer’s role as advisor or advocate, and this book explains how a prenuptial agreement can be generous in many ways.
One of the 21 chapters is devoted to post-marital agreements and how they also have a role in strengthening existing marriages when properly created.
“A major difficulty of family law is that the problems brought by clients are frequently not primarily legal problems; they are deep human problems in which law is involved.” So wrote Dr. Howard R. Irving in “Divorce Mediation, The Rational Alternative”, which was published in 1980.
Now, Laurie Israel — a lawyer, mediator and colleague (who is in a long-term marriage) — has given us a book of similar wisdom dealing with the specific subject of contracts before and after marriage, another human problem in which law is involved.
A drawing of two wedding rings, one leaning on the other, adorns the cover of the book, reminding us that married couples lean on one another and have areas of overlapping interests.
Here is a book we should give to clients and friends who are thinking about having a legal contract before or after they are married, and here is why.
1. The theme of generosity weaves through every discussion of substantive law, good and bad prenup provisions, and the whole process itself;
2. She is a process person and points out that the timing and process of negotiating a prenup is as important as the agreement itself;
3. Her research includes social patterns and trends in marriage, and various laws of many states addressing those questions;
4. Every question you can think of in contemplating a prenup or postnup is likely to be addressed in one of the 21 chapters of the book;
5. Discussion of fundamental issues such as the fiduciary duty of spouses to one another, or the importance of spouses jointly owning their first home, or the bargaining powers of fiancées as opposed to spouses, pop up to stretch your brain in every chapter;
6. The concept of the marriage as the client gives lawyers and mediators a different lens for viewing their roles and helping the person or people in their office to create a mutually beneficial prenup or postnup;
7. The book has ample case law and statutory references; and
8. The book is intended for the general public. She writes clearly, with lots of examples and humor.
And although national in scope, with its many Massachusetts references it will be very useful for Massachusetts mediators and lawyers, as well as their clients.
What’s so hot about a prenup, anyway? For first-time married couples, the prenup can destroy elements of trust essential to a healthy marriage, contradict basically fair principles of equitable division, and appease parents of
the richer spouse while neglecting what the couple wants.
Most of my clients in divorce mediation with prenups hate the prenup, have not found it useful, and begin by agreeing to ignore it (except for one couple that agreed their prenup was good but no one could find it and they could not agree what it said).
Yet Israel points out specific benefits of a prenup, especially for people entering second marriages. She explains
on page 7 that the thrust of her book is threefold: identify dangers of some prenup terms, suggest terms that can be helpful and even nurture marriages, and mitigate the harm caused by the typically corrosive process of getting
one.
The chapters range from the good, bad and ugly prenup; to what are generous prenups; to how prenups can help with estate planning, immigration issues and lifestyle questions.
Much of the book leads the reader to Chapter 17, which focuses on specific ways to help make both parties happy. Just the discussion of “consideration” and its many meanings and applicability to contracts before and after
marriage is worth the book.
(Alas, the Uniform Prenuptial Agreements Act says that consideration is not necessary to make a prenup binding. What kind of agreement is that?)
Page 270 makes us feel better by looking at meanings of “considerate,” including showing concern for the rights and feelings of others and being kind. With many examples, she shows us how a prenup or a postnup can help married couples do just that — be kind to each other.
I don’t know of a better mission statement for being a considerate family lawyer and mediator.
Printed with permission of Massachusetts Lawyers Weekly.