Excerpt from “The Generous Prenup: How to Support Your Marriage and Avoid the Pitfalls.” Available on Amazon and online booksellers in April, 2018.
Consideration is the hallmark of a good marriage. But prenups almost always are the antithesis of consideration.
When you think about it, in virtually all prenups, the less moneyed spouse is giving up marital rights. But does that person getting something in exchange? It seems logical that he or she should be trading those forgone marital rights for other rights. That’s what the legal concept of “consideration” in contracts is. As law students, we learned that to have a valid contract, there must be an exchange of consideration given and received on both sides, and that the exchange should be roughly equal, or in legal terms “sufficient.”
The less moneyed spouse always gives up marital rights in a prenup. Otherwise, there would be no reason for it. But what rights does the less moneyed spouse receive in exchange? The right to marry? The more moneyed spouse is also getting the right to marry the new spouse. Presumably, those rights to marry and to be with each other in an intimate relationship and institution called “marriage” are equal. Does it really make sense for the right to marry a more-moneyed spouse to be deemed “consideration” when the other party also has an important role to play in the marriage?
But surprisingly, the notion of consideration in the law of prenuptial agreements is highly limited. In many states, no consideration whatsoever is needed to enforce a prenuptial Agreement. This is inconsistent with normal contract law, where consideration is necessary for a valid contract.
But let’s go back to the notion of “consideration.” What does the word “consideration” really mean?
What does “consideration” mean?
The word “considerate” is a close cousin to that word. It’s where the legal term “consideration” came from. The word’s early meaning was “marked by deliberation,” or the character of a “deliberate” or “prudent” person. But starting from around 1700, it started meaning showing care or empathy towards another person.
Here are some of the other meanings of “considerate” I found when I searched online:
Showing concern for the rights and feelings of others.
- Having regard for the needs of another.
- Aware of and respecting other people’s feelings.
- Being respectful of others.
- Having regards for others.
- Being mindful of others.
- Characterized by consideration or regard for another’s circumstances or feelings.
- Not heedless or unfeeling.
- Careful not to inconvenience or harm others.
- Paying attention to the wishes of another.
- Being kind.
People should keep these meanings of “consideration” in mind as they go through the process of formulating and negotiating a prenuptial agreement. Reclaiming that core meaning of consideration as being considerate is of utmost importance in finding a way to make both partners to a marriage content with the terms of their marriage. After all, one of the hallmarks of a good marriage is for spouses to be considerate of one another. That’s why prenups are often so jarring to the future spouses embarking on a marriage; it’s because they are often inconsiderate.
For ways to make a prenup more “considerate,” read The Generous Prenup: How to Support your Marriage and Avoid the Pitfalls. To join the discussion, follow #GenerousPrenup.
Copyright © 2018. Laurie Israel. All rights reserved.