What is the Generosity Clause? Kindness During the Storm
The Generosity Clause prepares you for the worst-case scenario as well as the best possible outcome. Your prenup should be able to handle all possible emotional terrains.
If your prenup doesn’t have the Generosity Clause, it should.
Prenups in Florida should have a Generosity Clause because when you’re drafting a prenup, you should be drafting for the worst-case scenario - obviously. You should be drafting while imagining that your marriage has fallen into the worst place that you can possibly imagine it. And then you plan for that.
Think of buying a home insurance policy: you buy a policy that covers the house burning to the ground, which is the worst-case scenario. However, most houses don’t burn down to the ground...and most divorces are as bad as your worst-case scenario. (Believe it or not, most divorces are not burn-to-the-ground bad.)
While the prenup has to cover the worst-case scenario in our heads, we want to be realistic about the fact that your marriage may not end in a blaze and also plan accordingly - enter the Generosity Clause, which lets you be kind to your spouse as you part ways while not forcing you to be generous as status quo. Think of your prenup articulating the bare minimum as a requirement, while including a provision that allows you to be your most generous self - *if* you choose to be.
Even when you're locked into a contract like your prenup, you can still have option - if your prenup is well written.
A Generosity Clause allows you to have the best of both worlds: high coverage in your prenup for the worst-case scenario and flexible coverage when there's an opportunity to be cooperative and kind if the divorce is not caused by the worst thing ever.
Here's an example. Let’s say your prenup requires your partner to move out in three months, and three months comes and goes. Your partner is having trouble finding a new place to live... or your partner has a sprayed an ankle...or your partner had to leave town for a funeral...or your partner's work is all backed up. Regardless of the scenario, you want to give your partner another three months.
In Florida, you do have to be concerned that your judge is going to run with your instinct to be generous - and then punish you for it. The judge may say, "Since you gave your partner an extra three months, I’m going to court order another six months because clearly you had the ability to pay."
The judge will use those three buzz words: ABILITY TO PAY.
Those words are scary for people who want to be generous, but who rightfully feel that the judge may punish them for that generosity. Fortunately we have a solution for exactly this situation: the Generosity Clause.
We can include a clause that allows you to be generous to your partner, whether in terms of money or time so that it's up to you to decide whether to give more money, less money, more time, less time - all depending on the situation.
Remember that generosity goes both ways in terms of giving as well as receiving. The giving person or the receiving person may say, "You know what? I can use less. I’m far more comfortable with less."
The Generosity Clause allows you to act without impacting the overall terms of the prenup: your generous action does not create expectations that there will be more ability to pay simply because someone used the built-in flexibility. You don't have to worry about your choices and behavior un-doing the terms of your prenup that protect you.
Always remember the number one thing that a prenup can do for you is tie up the way you move money around..
DISCLAIMER: This information is offered as a helpful guide for our retained clients only. Any material offered on this website does not constitute legal advice and does not create a professional relationship between the reader and JustPrenups.com.
