A prenup allows you to lay out each spouse’s property rights to financial matters, such as income, assets, and debts, and specify who will take ownership of each in the case of a divorce or death. What about more personal things that aren’t financial in nature? For example, limiting how much weight one spouse may gain (yes, that’s happened before), how much time the in-laws may visit, what happens if one spouse cheats, and much more. These are known as lifestyle clauses, and they pertain to the behaviors of spouses during a marriage.
Under the umbrella of lifestyle clauses is the infamous “infidelity clause” or “no-cheating” clause. The infidelity clause can entitle one spouse to financial gain if the other spouse cheats on them. For instance, Catherine Zeta-Jones and Michael Douglas allegedly have a prenup stating that if Michael cheats, he must pay Catherine millions of dollars. (You can see more examples of celebrity prenups with outlandish lifestyle clauses here).
Here are some more ways couples may construct lifestyle clauses:
- The frequency of sexual intercourse between the spouses,
- If a spouse has a history of drug abuse, drug testing to be conducted randomly,
- The frequency of homemade meals prepared by one spouse per week,
- The limitation of social media use (no posting certain information, maintaining a private account, etc.). Read about social media + your prenup here,
- The limitation on how long one spouse may work before they retire, and
- The frequency of social activities the spouses participate in outside of the home, both together and apart.
Lifestyle clauses aren’t just for the rich and famous anymore. We’re seeing more and more folks requesting these provisions. Keep reading to learn if it’s acceptable in New York!
New York’s stance on lifestyle clauses
State laws surrounding lifestyle clauses vary. A few states, like Pennsylvania, may uphold your lifestyle clause and require the spouse to do what they agreed. Most other states, like California and Nevada, will not support your lifestyle clause and simply ignore the clause or possibly even throw out the whole prenup. So, what about New York?
In New York, it likely depends on the actual lifestyle clause that you are attempting to enforce, whether it can be proven to have been breached, and whether having such a clause in the prenuptial agreement violates public policy.
For example, if you have a lifestyle clause that restricts social media use, which is a confidentiality issue, there’s a much better chance that it will be upheld as it is very specific and easy to prove. On the other end of the spectrum, if you have a lifestyle clause that restricts weight gain, it may be hard to prove and against public policy, thus, not likely to be honored by a court.
Since there are virtually no appellate court cases on this issue, let’s look to other states for some answers. In 2002, a compelling case in California outlawed infidelity clauses. Since then, two other states’ courts—Iowa and Nevada—have relied heavily on this decision and denied lifestyle clauses in their home states. In the California case, known as Diosdado v. Diosdado, 97 Cal. App. 4th 470 (Cal. App. 2002), a couple had a prenup that imposed a $50,000 fine if either spouse cheated on the other. The California judges in the Diosdado case threw out the infidelity clause because it violated California’s underlying public policy. This shows a trend in state laws not supporting lifestyle clauses. If a New York court must decide on the matter, it is likely that the attorneys will be citing cases in other states like this California case.
Lisa Zeiderman, Managing Partner of Miller Zeiderman, LLP, discourages her clients from inserting Lifestyle Clauses in Prenuptial Agreements. According to Ms. Zeiderman, such clauses will become fodder for litigation later, may violate public policy, and will inevitably disappoint the party who is advocating for the lifestyle clause when the Court determines that it cannot be upheld. Ms. Zeiderman states, “we focus on making sure that the prenuptial agreement is carefully drafted, that all the provisions are enforceable, and keeping it realistic.” We draft and litigate prenups, and we want to be sure that if a couple does divorce, the prenup will be clear and enforceable and not cause unnecessary legal fees.
Why do couples still use lifestyle clauses in New York, even though they may not hold up in court?
As you’ve read, New York will likely not honor particular lifestyle clauses in prenups, such as infidelity clauses, but people still add them. Why? The answer is simple. Prenups can be emotional documents as much as legal ones. Lifestyle clauses may help provide clarity and expectations for the marriage. In fact, the process of negotiating lifestyle clauses in a prenup may help build a robust and lasting relationship as it shows a couple’s intent. This process forces the couple to communicate expectations before they become a problem down the road. After all, prenuptial agreements should be about total transparency.
But there is a caveat: many New York lawyers will advise against putting a lifestyle clause in the prenup. There are three main reasons why.
First, lifestyle clauses are not advisable because they instigate lengthy lawsuits. They create a topic for litigation (Did he cheat? Did she gain weight?) Lifestyle clauses like these create uncertainty in your prenup, and uncertainty typically leads to litigation.
Second, the prenup could be thrown out altogether as foundationally unconscionable. (You can find more New York case law on unconscionable prenups here). If your prenup gets thrown out, it’s a massive problem because now you’re back to square one with no prenup in tow. At this point, the court will apply standard state law to decide on your issues.
Third, the lifestyle clause may be ignored altogether, but the rest of the prenup may be honored. This is clearly the least taxing outcome, but still undesirable.
In a discussion with Lisa Zeiderman, she stated that in one postnuptial agreement her client signed on her own, the husband promised to give the wife 10 million Dollars at the time of signing if she promised to love him forever. When she filed for divorce, he insisted that she had breached the agreement and that he did not have to pay her the monies owed. Of course, in the end, after much litigation and negotiation, he did pay. However, the clause caused unnecessary anguish for the client plainly was a disappointment for the husband and increased their legal fees unnecessarily.
A notable mention: you may hear about other New York attorneys encouraging lifestyle clauses and writing them into their clients’ prenups, especially in celebrity circles. Again, this is technically allowed and not “illegal” by any means. It could, however, cause you more trouble than it’s worth in the form of more court proceedings, attorney fees, and time spent arguing. Not to mention, there’s a possibility that the judges throw out your prenup altogether because of your lifestyle clause.
FAQ regarding New York infidelity clauses
Undoubtedly, the number one asked-about lifestyle clause is the infidelity clause. As a refresher, an infidelity clause says that if one spouse cheats, the cheater is responsible for paying the other spouse a sum of money. You should know by now that New York may not legally uphold an infidelity clause, even though many couples still include them in their prenups. Since it has not been addressed by a high court in New York to date, the court will either oblige by the clause, ignore it, or throw out the contract altogether. Despite all the unknowns, infidelity clauses remain popular because couples like to set expectations and have an emotional understanding with each other.
Why do you always hear about celebrities using infidelity clauses if they might not be upheld? Celebrities may not be deterred by costly litigation if it means they can disincentivize their famous beau to not cheat (romantic!). Plus, they may be using it as more of an emotional document than a legal one.
I’m worried my spouse will cheat. Should I add an infidelity clause? The answer is you probably shouldn’t, as it will set you up for potential litigation and disappointment.
I decided to add an infidelity clause at my own risk. If my spouse cheats, will they pay? Whether or not the cheating spouse will pay is unknown. Our guess? Probably not. Divorces can be tense, and if someone doesn’t legally have to pay, they probably won’t.
What if we create a postnuptial agreement (i.e., a contract made after the wedding) with an infidelity clause? Same answer as with a prenup. The answer is you probably shouldn’t include the infidelity clause, as it will set you up for potential litigation and disappointment.
What if I have solid proof of adultery? Will my infidelity clause stand in that case? Again, probably not. It doesn’t matter if you have a photo of your spouse kissing another person; New York most likely will not uphold infidelity clauses.
Will lifestyle clauses one day be permitted and abided by in New York? The answer is unclear. Time will tell! It is uncertain how New York higher courts will interpret lifestyle clauses.
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Lisa Zeiderman is Managing Partner at Miller Zeiderman LLP, based in New York. A matrimonial attorney, CFL and Certified Divorce Financial Analyst, she regularly handles complex financial and custody divorce matters, as well as pre- and post-nuptial agreements. Named to the Crain’s New York list of Notable Woman Attorneys for 2022, as well as a Crain’s New York Notable Diverse Lawyer for 2022, a Hudson Valley Best Lawyer in 2022, a 2021 Best Family Law Attorney for Client Satisfaction by the American Institute of Family Law Attorneys, among many other awards, Lisa is a founding member of the American Academy of Certified Financial Litigators and a member of the panel for Attorneys for Children. Lisa is also a member of the Forbes Business Council. In addition to authoring a well-read blog on Psychology Today, “Legal Matters: Understanding Mental Health Issues as They Apply to Divorce and Child Custody,” Ms. Zeiderman is regularly published in Financial Advisor Magazine, the New York Law Journal, and by the Forbes Business Council. She is also interviewed on issues ranging from financial empowerment to tax issues to child custody in a host of media. Ms. Zeiderman, a Fordham University of Law graduate, also serves as the Vice President of the Board of Savvy Ladies, Inc., and on the board of LIFT, Legal Information for Families Today.