Should You Add a "Lifestyle Clause" To Your Prenup? (Or Are They Just For Celebrities?)

07/22/2016 12:28 am ET Updated Jul 22, 2016
Before making your way down the aisle, it's wise to have a prenup discussion with your partner to make sure you're both
StockSnap
Before making your way down the aisle, it's wise to have a prenup discussion with your partner to make sure you're both on the same page.

For better or worse, celebrity marriages have a sizable influence on the marriage trends of us mere mortals living outside the glamour of Hollywood. But it’s not just celebrities’ wedding dress styles or venue arrangements that are significantly shaping our marriage ideals and standards. It’s also their attempt to use a prenup as a means of controlling and influencing the behavior, finances or lifestyle choices of one or both partners during their marriages.

How are they doing this?

By including “lifestyle clauses” in prenuptial agreements. From Angelina Jolie and Brad Pitt to Kim Kardashian and Kanye West, persistent rumors buzz around Hollywood power couples said to have included these controversial clauses in their prenuptial agreements.

So what exactly are these clauses and should you consider one in your own prenup? Let’s find out more.

What is a lifestyle clause?

In simple terms, lifestyle clauses are conditions written into prenuptial agreements which dictate the ideal behavior of one or both partners in a marriage, or outline jointly-made decisions regarding matters such as the upbringing of children, religion and how to deal with in-laws.

There are even more bizarre lifestyle clauses. Believe it or not, imposing penalties on a partner if they gain weight, or outlining how many times to visit the in-laws are clauses that are growing in popularity. Gaining even more traction still is the infamous “infidelity clause”, an allegedly popular fixture in many celebrities’ prenups.

But this still begs the question- are lifestyle clauses even legal?

Is it legal to include lifestyle clauses?

It turns out that yes, they can be, so long as you live in a state where lifestyle clauses are enforceable in court. Laws regarding the legality of lifestyle clauses in prenuptial agreements are different in every state, and in fact, vary wildly, so this means there is no blanket answer to this question.

To exemplify this point, it is helpful to draw a comparison of different states’ laws. For example, because of its status as a “no fault divorce state”, California does not enforce any lifestyle clauses.

“In California, any provisions that would penalize a party for ‘fault’ in a divorce proceeding, such as a clause mandating that a spouse fulfill certain requirements—fidelity, frequency of sex, even housekeeping—is unenforceable,” explained Lora Grevious, a lawyer at Toeppen & Grevious.

In sharp contrast, a prenup made in a state which allows lifestyle clauses, like Florida, is generally enforceable “unless they are illegal, i.e. not permissible by law, or the court finds fraud, duress, etc.” said Kemie King, a family attorney in Florida. 

Evidently, there is no uniformity across the country regarding their legality, so it is important to check your particular state’s laws before proceeding with any lifestyle clauses.

How do you make lifestyle clauses enforceable?

As both lawyers touched on, the legal enforceability of the clauses included in a prenup is at its core, state-dependent. However, that being said, just because you live in a state which allows for these clauses, does not necessarily make them enforceable. There are other factors you must account for in order to ensure their enforceability in a court of law.

“Lifestyle clauses need to be carefully drafted to be enforceable. The issue isn’t admissibility, but rather, enforceability,” advised Joshua E. Stern, an attorney runs a family law practice in Illinois.

“The terms could be too hard to prove to matter. For instance, proof of infidelity may be more difficult to produce than one would think,” Stern said. “Likewise, if the agreement is not broad enough, it may leave loopholes”.

In short, those considering including lifestyle clauses should be careful to tread a fine line between being clear and thorough with their prenup inclusions, and maintaining a certain amount of flexibility.  

Is it worth including one?

The jury is still out on this particular point, as there are both pros and cons for including lifestyle clauses.

On the positive end of the spectrum, “these type of clauses give everyone the bottom line prior to going into the marriage,” explained King.

“Each party knows ahead of time what the consequences are for the other party if they engage in certain behaviors.”

This is a sentiment shared by Keith Nelson, a family lawyer at Orsinger, Nelson, Downing and Anderson. He also explained that the removal of doubt is a positive of any marital agreement, because “everyone knows what to expect the result to be.”

However, Nelson warned that lifestyle clauses “can get out of hand”. He recalled his encounters with agreements that stated “how many times per week the couple will have sex, go out to dinner or how they will conduct their social lives.”

He believes such outlandish clauses are far less enforceable, but more onerous on the couple, and have “just as much of a chance of tearing a marriage apart as they do of letting the couple relax in their relationship”.

Grevious similarly argued against lifestyle clauses, highlighting that they can “discourage honesty between spouses”. To drive her point home, she posed the following question:

“Would you rather have your partner tell you that they no longer love you, or would you rather they lie to you and lead you on while having an affair because they don’t want to suffer the financial implications of you discovering the affair?”

Evaluating the worth of lifestyle clauses will require you to pinpoint the answers to these, and many other uncomfortable questions. Their worth is largely dependent on what exactly you and your partner are trying to achieve. As King advised,

“Think long and hard about what you are trying to accomplish. Will this clause help you or hurt you in 2 years, 5 years, 10 years?”

Final considerations 
Evaluating if a prenup is right for you and your partner is a daunting task in itself
Considering whether or not to additionally include lifestyle clauses is even more so. The topic of lifestyle clauses may bring up issues of trust (and conversely, insecurity), finances, fidelity, and personal values and expectations. It makes a couple evaluate their relationship in terms of the “what if?”

Without a doubt, these are not easy topics to broach, and as such, will require ample time, reflection, and discussion. At the end of the day, whether or not you choose to include a lifestyle clause is primarily a personal choice for you and your partner to make.

While certain marriage fads come and go, it seems for the time being, the trend of lifestyle clauses is here to stay. Although they certainly aren’t for every couple, if you’re planning to walk down the aisle, it might be worth at least mulling over the subject. 

You never know- discussing lifestyle clauses may just unearth important values and expectations you and your partner hold that you might not be aware of. That is, until it’s too late.

This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.
CONVERSATIONS