Recently, couples have been including so-called “lifestyle clauses” in their prenuptial agreements. Prenuptial agreements are contracts between spouses that specify the soon-to-be spouses’ respective property and financial rights during the marriage and in the event of divorce. Such agreements typically include terms that identify which of the spouse’s property would be considered “separate” and “marital”; provide for how marital property would be divided in the event of a divorce, and set the circumstances and nature of spousal support to be paid upon termination of the marriage. These typically focus on financial aspects of the marital relationship.
A “lifestyle” clause, on the other hand, sets behavioral expectations for the parties during their marriage, and may provide for financial penalties for failure to adhere. Infidelity clauses have reportedly been included in high profile celebrity unions. For example, Jessica Biel is widely reported to be entitled to compensation of $500,000.00 if Justin Timberlake is unfaithful during the marriage according to the terms of their prenuptial agreement.
Some individuals opt to include “social media” clauses in their prenuptial agreements. Similar to the infidelity clauses, these set the limits of social media behavior for the spouses during the marriage. For example, a social media clause may forbid the parties from posting certain content on their public profiles, and regulate contact between the parties and third parties on private features of social media sites. Failure to adhere to the guidelines set forth in the prenuptial agreement may result in financial penalties to the noncompliant spouse.
While many may couples find that adding lifestyle clauses to their prenuptial agreements may help them identify common desires for conduct during their marriage, these clauses should be drafted very, very carefully so that the language reflects their intent. For example, an infidelity clause must specify exactly what conduct constitutes “cheating”, and a social media clause should be drafted so that there is no room for confusion as to the parties’ expectations. Therefore, there should be extensive communication and agreement between future spouses as to what they want to specify as prohibited behavior before they begin the drafting process.
Additionally, couples should investigate applicable law in their current home-state and states in which they may live during their marriage, since each state has its own legal framework for how courts examine and enforces prenuptial agreement. For example, California has held that infidelity clauses in prenuptial agreements are unenforceable because they violate state policy favoring no-fault divorces. In Massachusetts, a court will enforce a prenuptial agreement only if it finds the agreement was fair and reasonable both at the time of execution and at the time of enforcement (i.e. at the time of divorce). On the other hand, some states examine the prenuptial agreement only at the time of execution or only at the time of enforcement.
The process of negotiating a prenuptial agreement that includes lifestyle clauses may in itself help built a strong, lasting union, even if the desired provisions may not be enforceable under current law. Communicating with your future spouse about your respective expectations for each other during the marriage may help you identify issues about which they may or may not be able to agree.
We recommend couples interested in a prenuptial agreement with lifestyle clauses discuss and agree upon what they are looking for, and then each should consult with an experienced attorney about the realities of enforcing the agreed-upon provisions in a prenuptial agreement.
-Elisabeth R. Feeney, Esq.