“The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls”
by Laurie Israel
As some of you may know, I spent a good part of the past 3 years writing a book about prenups. Our mediation (and law) practices sometimes take interesting turns. I started out as a tax lawyer, and then morphed into a general practice lawyer, concentrating on family law and estate planning. I’ve been practicing for a little over 30 years.
About 10 years ago, after representing a number clients in prenup negotiations, I wrote an article called “Ten Things I Hate about Prenuptial Agreements” and posted it online. This was during the relative infancy of the World Wide Web. Because the article was written by a lawyer, and because it struck a chord with many people who had faced or were facing a prenup, it more or less went viral. People are still reading it today and contacting me.
This caused more clients to seek me out for prenup representation, and I started building more expertise. That’s what “practicing law” is. I sure got a lot of practice! I represented both the less-moneyed spouses concerned about their futures, as well as the more-moneyed spouses who (generally) wanted to be fair and supportive of the other future spouse. My clients understood that a prenup could be detrimental to their marriage, and wanted to avoid that result. About eight years ago I started working with both parties seeking a prenup as a mediator, which worked wonderfully in most cases. I’d send them to reviewing attorneys once the term sheet was settled through mediation.
I continued to have very negative experiences representing less-moneyed spouses, especially when the prenup was the idea of the “shadow parties.” These are usually the parents of the more-moneyed future spouse. Usually the parents required the prenup, and pretty much set the terms. This put their child in a terrible situation – the child would have to go against their parents, or not act in the best interests of the future partner.
Worsening the situation, often the attorney representing the more-moneyed future spouse was the business lawyer or estate planning lawyer of the parents. As a result, that lawyer generally didn’t function truly independently on behalf of his or her client. This was a very bad situation causing much heartache and suffering in prenup negotiations. These prenups often brooked no compromise, and almost always ended up badly for the less-moneyed future spouse.
I started getting very interested in writing a full-length a book (rather than the articles I had been posting on the internet) that would explain the problems inherent in prenups (both in process and in content), and how they have the potential effect of destabilizing marriages.
I started the process by formulating a comprehensive a book proposal with chapter descriptions. I followed the chapter descriptions as I was writing, and 3 years later (after much research and many revisions) I ended up with a 21-chapter book, plus an introduction.
The real surprise is that I enjoyed writing the book, from beginning to end! I was motivated, I guess by wanting to reduce the suffering I’d seen with people who are trying to enter into a prenup. I wanted to change that dynamic, and move the needle towards a process and a result that would help a couple, rather than hurt them. I wanted to influence the way lawyers tend to think about prenups. After all, in my practice, I found that a prenup can be generous and fair to the less-moneyed spouse, while still providing certainty and reasonable protection to the more-moneyed spouse.
Too many lawyers are concerned with asset protection to the detriment of the health of the upcoming marriage. Isn’t part of giving good counsel to a client trying to find a prenup solution that would improve and support that upcoming marriage? Unfortunately, many attorneys still don’t view it this way. A prenup can become a self-fulfilling prophecy for divorce.
My book is quite comprehensive. It’s for the (very smart) general public, but will also be a very good resource for lawyers and mediators. It strongly promotes mediation as the best way to start the process in many cases. It has chapters on prenups for wealthy people, estate planning prenups, prenups for people with businesses, “gray” prenups for second marriages, LGBT prenups, immigration prenups, the question of alimony in prenups, and a chapter about the factors that make prenups enforceable, and factors that make them unenforceable. (They usually are enforceable, so if you sign one, assume it will be in force 40 years from now.)
Because so many areas of law are described, The Generous Prenup will be very useful to a non-attorney mediator who would like to learn more about the law of divorce and inheritance. The book is national in scope, but since I am a Massachusetts lawyer, it’s full of Massachusetts law, including case law.
The Generous Prenup discusses the drawbacks to prenups, and how to make both parties happy. There is a chapter on postnuptial agreements for couples who want to try to stay together. I call that chapter “The Postnup: A Powerful Tool to Be Handled with Care” Because I think postnups are fraught with dangers. There are chapters about how to choose an attorney or mediator, and how to begin the process.
If you’re getting a prenup most times (but not always) one of the parties has some present (or future) wealth. But how much wealth is enough? Why not share some of it over time with your spouse? Unfortunately, many prenups have no sharing of “separate property” whatsoever, except at the choice of the more-moneyed spouse.
My book suggests that sharing can be written into the prenup. For instance, income generated by “separate property” (or part of it) could become shared “marital property” immediately or over time. The same with increases in value of “separate property,” or a percentage of it, and even for the value of “separate property” itself. Participation in the joint venture of marriage (including the financial side of marriage) is extremely important to the health of a marriage in most cases.
I tried to make the book interesting, and I’ve included many interesting facts and some good jokes. Here are a few:
- There is a prenup from 1995 that required the parties to engage in “healthy sex” three to five times per week.
- Donald Trump married Ivana subject to a prenup. Sometime after the marriage, he initiated a postnuptial agreement to benefit Ivana because, as he said, “I thought it was appropriate. I was upwardly mobile.”
- Mark Zuckerberg got married the day after the IPO of Facebook. The reason for the timing of the marriage was likely to establish Facebook’s value at the time of the marriage.
- Alimony laws in Texas give it the reputation as the “wife-dumping” state, and give new meaning to the lyrics of the Tammy Wynette song, “Stand By Your Man.”
- A gay journalist said as he was contemplating the possibility that he and his partner would enter into a legal marriage, “Nor could I add up the hours my partner and I spent eyeing marriage as if it were a fat slug on the carpet that we needed to deal with but didn’t really want to touch.”
- In discussing the definition of “unconscionability,” I was able to quote Justice Potter Stewart’s famous line in Jacobellis v. Ohio, about the definition of obscenity, in which he said, “. . . I know it when I see it.”
- And here’s a joke that I put in the lifestyle prenup chapter: A couple in their 70s is negotiating a prenup. The future wife says, “If we divorce I want to keep the house.” He says, “That’s OK with me.” she says, “I want to keep the Rolls-Royce.” He says, “That’s OK with me.” then she says, “And while we are married, I want to have sexual relations six times a week.” And he says, “Put me down for Fridays.”
There’s lots of serious stuff in The Generous Prenup too. It is almost a primer on all the areas of law impacting prenups and postnups. You’ll learn a lot about estate planning, divorce laws in various states, community property versus equitable distribution, the uniform laws on prenups, estate planning techniques useful in prenups, whether spouses are responsible for each other’s debts, what happens when you marry without one, and many more.
I try to explain these things clearly and simply. One of the people providing advance praise for the book said in part, “. . . the author has a knack for explaining complex legal issues in plain English, with useful examples drawn from her work as a lawyer and mediator.”
The book is available on Amazon, Barnes & Noble, and other online retailers as an eBook and a softcover print book. To learn more about the book, you can visit my author website www.laurieisrael.com. I’ve posted the table of contents and the complete index on the site, as well as several excerpts from the book.
The next part of my job is launching the book. I’ve been surprised to find that this is an adventure and is actually kind of fun to do. I hope you like the book, and find it useful in your practices.
-- Laurie Israel
April 12, 2018
Check out MCFM Member Laurie Israel’s book The Generous PreNup: How to Support Your Marriage and Avoid Pitfalls. It is available at online retailers for purchase (including - Amazon).