While you know by now that prenuptial agreements can protect your property, you may wonder about what other terms you and your soon-to-be spouse can agree on about your upcoming marriage. So-called “lifestyle clauses” dictate how your relationship should be and are gaining in popularity, especially in hollywood. But could a lifestyle clause be right for you? Are they even enforceable? These clauses may not be enforceable in all states and may bring about additional concerns that make you think twice about adding them to your prenup.
What Is a Lifestyle Clause Anyway?
A lifestyle clause in a prenup is a contractual clause for your marriage that are usually not directly related to financial arrangements between a couple. However, if a spouse violates a clause, he or she may face a financial penalty. Examples of lifestyle clauses may include:
- The spouses will be faithful to each other
- The frequency of sexual relations between the spouses
- Random drug testing will be conducted on a spouse with a history of drug abuse
- How much weight a spouse can gain
- How the children born of the marriage will be raised
- How many homemade meals will be prepared by a spouse per week
- A prohibition on posting information about a spouse on social media in the event of a divorce or separation
- How much time a couple must spend with in-laws
- How often spouses engage in social activities outside the home
Some couples want to enter into a contract regarding these matters so that they get what they expect out of the marriage. They may be just as worried about some of these issues as they are about property issues.
Lifestyle Clauses & the Uniform Premarital Agreement Act
The Uniform Premarital Agreement Act (UPAA) was drafted by the National Conference of Commissioners on Uniform State Laws, which provides states with non-partisan crafted legislation that they can choose to adopt in full, in part, or not at all. At least 28 states have enacted the Uniform Premarital Agreement Act. Other states have their own laws related to what can and cannot be included in a prenup and how prenups are governed.
Under the UPAA, the following rules apply:
So…What Can Be Included in a Prenup?
The UPAA provides for the following:
- The rights and responsibilities of each party toward property
- How property will be divided if the couple later divorces
- Whether spousal support can be awarded or modified
- The creation of a will or trust to carry out the agreement
- Ownership rights of a life insurance policy
- The choice of which state law will apply to the agreement
- Any other matter that does not violate the law or public policy
There are also procedural safeguards included under the UPAA, such as the requirement to provide accurate financial disclosures and give each party the opportunity to retain independent legal counsel.
And…What Cannot Be Included in a Prenup?
The UPAA specifically states that the following provisions will not be enforceable in a prenup:
Clauses Concerning Child Custody
The UPAA states that any term in the prenup regarding custodial responsibility is not enforceable. This includes terms that involve:
- Physical custody
- Legal custody
- Parenting time
- Access to or visitation with the child
- Any other custody right or duty regarding the child
Clauses that Affect a Child’s Right to Support
Children are entitled to financial support, and their parent does not have the right to waive this right in a prenuptial agreement, according to the UPAA.
Clauses that Affect a Domestic Violence Victim’s Rights
Clauses that would limit or restrict a legal remedy available to domestic violence victims under state law are also not enforceable.
Clauses that Change the Right to Seek a Divorce or Separation
Clauses that modify the grounds for a party to seek a divorce or separation are also not enforceable.
Clauses that Penalize a Party for Requesting a Separation or Divorce
Clauses that would penalize a party for initiating legal action to separate or divorce are not enforceable.
A Note on Non-Financial Matters
While the UPAA includes a discussion of whether clauses regarding non-financial matters (such as lifestyle clauses) are enforceable in a comment, it does not take a definitive stance on this issue. It stats that there is a “general consensus in the caselaw” that courts will enforce provisions related to issues that are not related to their financial obligations and notes cases in which courts refused to penalize a spouse for committing adultery or using drugs, but it also notes that some courts have enforced provisions in premarital agreements regarding marital conduct, such as agreeing to appear before a religious arbitration board or not to use fault grounds or a divorce or separation. Therefore, it is left up to the individual states to determine whether such lifestyle clauses will be enforced or not.
Lifestyle Clauses and State Law
State laws may go further than the UPAA and declare what types of provisions they will – and will not – enforce in prenuptial agreements. For example, Arizona law does not enforce the following provisions in prenuptial agreements:
- Child custody
- Provisions that would adversely affect a child’s right to child support
- Any matter that is a violation of public policy or a statute that would impose a criminal penalty
Some states hold prenuptial agreements are only effective with respect to the financial interests of the parties. There are not currently uniform standards regarding whether such agreements or clauses will be enforced, ultimately leaving these questions up to the individual judge assigned to the case.
Even if a state is willing to consider a lifestyle clause, it may be difficult to prove the event occurred and to enforce the clause. In some situations, if the lifestyle clauses are found to be material to the construction of the prenuptial agreement, the entire agreement may be invalidated if these clauses are not enforceable. It may be possible to avoid this outcome by including a severability clause in the prenuptial agreement that allows the court to enforce the remainder of the agreement while ignoring the portion deemed unenforceable or severed from the rest of the agreement.
Lifestyle clauses may help provide clarity and expectations for the marriage. If you want these clauses in your prenup, it is important that you understand how your state treats these clauses and whether including them may raise concerns regarding the enforceability of your premarital agreement.
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