Background on Lifestyle Clauses
Lifestyle clauses are a type of clause that you may see in a prenup in some states. A prenup generally outlines what happens to each spouse’s financial matters, such as property and debt, and who will take ownership of such in a divorce. In other words, prenups are usually centered around financial issues, but what about more personal aspects of marriage? Some states allow couples to include non-financial clauses, sometimes called lifestyle clauses, in their prenups. However, some states, like California, do not enforce lifestyle clauses, and CA attorneys will not advise you to include them as they may invalidate your whole prenup.
Back to lifestyle clauses, these can include outrageous topics, like restricting how much weight someone can gain or how much quality time is spent with the in-laws. But, by far, the most common lifestyle clause is the infidelity clause, otherwise known as the no-cheating clause. All in all, a lifestyle clause relates to each spouse’s behaviors during the marriage.
The infidelity clause is exactly what you think: if one spouse cheats, they have some sort of financial penalty. This clause can provide financial gain to one spouse if the other cheats. Celebrities do this all the time. For example, Jessica Biel and Justin Timberlake supposedly had an infidelity clause written in their prenup that requires Justin to pay $500k to Jess if he cheats. Wow! You can read about tons of celebrity prenups with crazy lifestyle clauses here.
Lifestyle clauses come in many shapes and sizes. Here are some more lifestyle clauses that may appear in some prenups:
- How often the spouses have sex,
- The requirement of random drug testing,
- The way in which the children are raised as it relates to education, diet, religion, etc.,
- How often one spouse prepares meals each week,
- Restricting social media use. Read about social media + your prenup here,
- The requirement of when a spouse should retire, and
- How often the couple engages in social activities.
California’s take on lifestyle clauses
Lifestyle clauses are treated differently from state to state. In a word, California courts will not uphold a lifestyle clause in a prenup. This is confusing because the California courts will not enforce your lifestyle clause, yet you hear about all those Hollywood celebs putting infidelity or weight gain clauses in their prenups. However, these are just that–rumors. “If you don’t want to worry about the validity of your prenup, don’t include an infidelity clause.” –California family law attorney Raymond Hekmat, Esq.
To get a divorce in California, you do not need to show who is at fault for the divorce. It is a “no-fault” divorce state meaning you may only divorce on the grounds of irreconcilable differences. This means that you can’t bring evidence showing one spouse committing adultery because fault has no weight on the decisions of the divorce. From a legal perspective, a lifestyle clause or “no-cheating” clause would require the judges to determine whether infidelity has actually occurred, violating the concept of “no-fault” divorce.
Let’s look at an influential California case that outlawed infidelity clauses back in 2002. In Diosdado v. Diosdado, the couple had a contract that imposed a $50,000 fine if either spouse cheated on the other. The judges, in this case, threw out the agreement because it violated California’s underlying public policy for a no-fault divorce. You cannot avoid the California no-fault system by simply executing a marital agreement. The judges pointed to Cal. Fam. Code. § 2335, which states that evidence of marital misconduct is not allowed in a divorce proceeding. In other words, fault or blame does not play a role in a judge’s decision in a divorce.
Just two years later, in 2004, another California court underscored the Diosdado case by turning down a marital agreement that awarded the wife certain property if the husband were to do cocaine. The judges in this case (In re marriage of Mehren & Dargan) looked to the Diosdado opinion for answers. Similarly to the Diosdado case, the court here also agreed that they would need to evaluate the husband’s misconduct here, which is not allowed under Cal. Fam. Code. § 2335. So, the judges threw out the agreement. Moral of the story? Even though it’s a good thought, you can’t add a clause in your prenup saying your spouse can’t do drugs– it is considered a lifestyle clause and not enforceable in California.
Both the decisions in In re marriage of Mehren & Dargan and Diosdado v. Diosdado discussed the judges’ statements in the famous California Barry Bonds case. The judges in the Barry Bonds case drew an important distinction between ordinary marital agreements and commercial contracts. Marital agreements do not have the same vast freedom to contract without government interference in the same way commercial contracts do. They elaborated that couples enter a marital contract with no intent to act on the contract (no one wants to use their prenup and get a divorce)! On the other hand, in a commercial contract, the parties intend to carry out the contract’s purpose. This means there must be legal limitations imposed upon prenups, according to California’s policy towards marriage. TLDR; California policy affirms that prenups shouldn’t be granted the same vast freedom to contract as a regular contract might. This is the theory and policy behind disallowing lifestyle clauses.
Maryland does allow lifestyle clauses!
In contrast, while the state of California may not enforce infidelity clauses, Maryland likely does! Not all states are vehemently opposed to these behavioral clauses. The recent Maryland case goes as follows. The husband is the grandson of Rachel “Bunny” Mellon (an American philanthropist and horticulturist), and the wife was the social secretary for former first lady Melania Trump. The husband is fairly well off with family wealth from his grandma and parents. Throughout the marriage, the husband cheats on the wife. In response, the wife only agrees to stay married to him if he signs a postnuptial agreement that requires he pay a penalty of $5 million if he cheats again. Husband agrees to this arrangement against his lawyer’s advice. In fact, he even suggests a higher amount! He promises a staggering $7 million if he ever cheats again!
A few years pass, and the husband cheats again. Of course, the wife brings the matter to court. The result? The court sides with the wife and upholds the clause! That’s right; the court enforced the $7 million penalty. The court explained that Lloyd was the sole trigger of the penalty, and he acted with his free will in negotiating the agreement.
In court, the husband argued that the agreement was unconscionable, it lacked consideration, and there was undue influence in creating the agreement, but the court disagreed. The court reasoned that the agreement was not unconscionable simply because it created a financial disparity between the spouses. The agreement did have sufficient consideration because the wife promised not to file for divorce in exchange for the $7 million no-cheating penalty. And finally, there was no undue influence. The husband exercised free will in the negotiation process (heck, he even suggested $2 million more than the original ask!). Plus, the wife showed no behavior that expressed undue influence or duress.
Moral of the story? Infidelity clauses are sometimes upheld, but it can vary from state to state. Make sure to check out your state laws or consult with an attorney to see if an infidelity clause is appropriate for your situation.
FAQ regarding infidelity clauses
Undoubtedly, the number one asked-about lifestyle clause is the infidelity clause. As a refresher, an infidelity clause says if one spouse cheats, then the cheater is responsible for paying the other spouse a sum of money. You should know by now that California and other states do not legally uphold infidelity clauses. The court will either ignore your infidelity clause and uphold the rest of the agreement or throw out the contract altogether. Despite all the unknowns, infidelity clauses remain popular because couples like to set expectations and have an emotional contract with each other. It’s also just downright interesting!
I’m worried my spouse will cheat. Should I add an infidelity clause? The first question you should ask yourself is: do you live in California or any other state that is opposed to infidelity clauses? If the answer to that question is “yes,” then you should not get an infidelity clause. You will risk invalidating the entire agreement. Now, if you live in a state where it may be upheld, the answer is “it’s up to you.” Infidelity clauses do not hold up in many courts across the country, and you run a risk of the court throwing out the whole agreement by adding one.
I decided to add an infidelity clause at my own risk. If my spouse cheats, will they pay? If you are in a state like California where the clause will not be upheld, then, no, the court will not require your spouse to pay. However, if you live in a state like Maryland, then yes, there’s a chance that the court will require the cheating spouse to pay! You can even enforce the agreement privately if the cheating spouse decides to pay you without court enforcement. Whether that happens will be determined by their character as a person, not anything in a legal textbook.
What if we create a postnuptial agreement (i.e., a contract made after the wedding) with an infidelity clause? If you are in California, it doesn’t matter—a California court will not honor it. Prenup or postnup, infidelity clauses are not legally valid in California and some other states. However, if you are in another state like Maryland that may uphold an infidelity clause, then yes, you may add an infidelity clause to your postnup.
What if I have solid proof of adultery? Will my infidelity clause stand in that case? In California, it does not matter. California does not uphold infidelity clauses. As discussed in the Diosdado case, a California court will not investigate the misconduct of either spouse in a divorce proceeding. Now, if you are in another state like Maryland that may enforce infidelity clauses, then yes, it may help with your case to have proof of adultery.
What if my spouse cheats in another state? Will my infidelity clause stand in that case? In states like California, no, it doesn’t matter if they cheat on Mars (although that would be impressive!). However, if you’re in states like Maryland, then you may use proof of your spouse cheating in another state as evidence of infidelity.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]