“The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls”
Book by Laurie Israel, Esq.
Integrity Registry Press (2018) 384 pages; $23.99
Book Review by John Fiske:
I love this book. 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 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 these 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 who 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, and what are generous prenups, to how prenups can help with estate planning, immigration issues and lifestyle questions.
Much of the book leads us 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.
This review originally appeared in the June 11, 2018 issue of Massachusetts Lawyers Weekly. It is republished here with the permission of Massachusetts Lawyers Weekly.
Partner in Healy, Lund and Fiske, now Healy, Fiske, Richmond, & Matthew, since September 1, 1979. From being lawyer and mediator about half and half in the beginning, I am now about 99% mediator and 1% lawyer. I also conduct mediation trainings.
My wife and I took our 3 children, ages 17, 14 and 12, out of school in June, 1978 and we bicycled through Europe and backpacked in Asia for a year, deciding in about April 1979 that when we returned to Boston I would become a divorce mediator. Back home I started talking to judges, lawyers, therapists, ministers, teachers and anyone who would listen. People thought I was a meditator because no one knew what mediation was, back then. When I said, "I help couples sit and talk and listen to each other and get divorced peacefully," the almost universal response was "That makes so much sense." Harvard Law School Professor Frank Sander said, "You are riding the crest of a wave, but don't give up your day job."
A Massachusetts probate judge, the late Sheila McGovern, recommended I join the law firm of Healy and Lund. Regina Healy and Diane Lund did what she said, and they changed the name of the firm to Healy, Lund and Fiske. They taught me family law and I taught them mediation. Probate Judge Edward M. Ginsburg believed in the process and sent cases to me. My first mediation began with the wife addressing her husband, their two lawyers and me: "We understand we are some sort of experiment!"
After two years of mediating divorces I had my first mediation training when John Haynes and Steve Erickson came to Worcester. Then Margaret Shaw joined with the Mass. Bar Association in 1985 to provide more divorce mediation training, and Chris Moore did the same in 1987. Diane Neumann, Phil Woodbury and I founded Divorce Mediation Training Associates in 1988 and we have been training people in divorce mediation ever since.
I have probably mediated about 2,000 divorces, separations and contracts to stay married since 1979. In response to requests from families I have expanded my mediation practice to include a broad range of disputes, from siblings trying to decide questions of care of a relative to a father and son reaching a financial agreement. I have volunteered my services as a mediator to my town government: in one case I helped to resolve a dispute between citizens and a town official. The point: mediation is a creative, efficient process for addressing human conflict. You get a place to talk. You stay in charge of your life.
Laurie Israel is a lawyer/mediator who works in the areas of collaborative divorce, divorce mediation, divorce negotiation, prenuptial agreements and postnuptial agreements. A significant part of her mediation practice is mediating prenuptial agreements and she has written extensively on this subject. Laurie has published articles on prenups in The New York Times and in the Wall Street Journal, as well as in The Huffington Post. Laurie is the author of “The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls,” now available through online booksellers. Laurie also helps people who wish to stay married through providing marital mediation and is a frequent presenter on this topic, giving trainings to mediators around the country. Laurie is a former board member of the Massachusetts Council on Family Mediation and of the Massachusetts Collaborative Law Council. She is a founder and a managing partner of Israel, Van Kooy & Days, LLC in Brookline, Massachusetts. Laurie writes regularly on marriage, divorce, mediation and other topics.