You may know by now that a prenuptial agreement can protect premarital property or other assets and property you wish to remain separate after marriage. You may have also heard of “lifestyle clauses” and what they mean for the type of clauses you and your spouse can agree to in your agreement. “Lifestyle Clauses” gained popularity in Hollywood, and are notorious for the most egregious of reasons, like dictating how much weight a party can or cannot gain during the marriage, or how often you must see your mother in law. There are also the more reasonable types of “lifestyle clauses” that allow you and your future spouse to decide whether or not to retain a life insurance policy, or who will retain custody of and pay for all of Fido’s expenses if you and your betrothed are to separate in the future. Could a lifestyle clause be right for you? Which ones are actually enforceable? Below we will outline how lifestyle clauses work and which may be most useful to you.
What Is a Lifestyle Clause?
A lifestyle clause in a prenuptial agreement, broadly speaking, is a contractual clause that usually has to do with non-financial arrangements. There may be a financial penalty for violating the clause. Because the term “lifestyle clause” is not an official term by any stretch, there are a wide variety of clauses that can fit into this category. Examples of lifestyle clauses may include:
Hollywood loves the Infidelity Clause
Infidelity clauses are very popular in celebrity prenups, and require that the spouses be faithful to each other. If one spouse violates this clause, then there is usually a financial penalty. These clauses are not always enforceable, so it is important to decide whether or not you wish to include this clause for emotional reasons first and foremost. With 55% of couples stating infidelity was the reason for their divorce, infidelity clauses are becoming more and more popular.
Want some juicy celebrity examples? Denise Richards and Charlie Sheen had an infidelity clause in their prenuptial agreement, and Denise took full advantage of this clause when she reportedly received an additional $4 million in the divorce off his indiscretions.
According to the prenup drafted for Jessica Biel and Justin Timberlake, Jessica will supposedly receive $500,000.00 if Justin has an affair during their marriage. The actress apparently had an infidelity clause added to their prenup in reaction to infidelity while they were dating.
Sexual Relations
Clauses like this one are often seen in the most outrageous of celebrity prenups that get leaked on the interwebs, and for good reason- they are objectively, outrageous. These clauses often put a number on how frequently the couple must be intimate, and there is a financial penalty for lack of intimacy. Don’t depend on a clause like this to be enforced, because they won’t be – and a court will most likely state that a clause like this goes against public policy, because it is essentially a contract for sex.
Weight gain
Adding a few extra pounds can cost a lot if you add this into your prenuptial agreement. Celebrity prenups are notorious for including weight clauses (cough Jessica Simpson cough) that limit a party’s weight to a max of so many pounds, and also set a penalty if that party is to go over that weight. Some weight related clauses also impose a monetary fine for each excess pound that is gained over a certain threshold.
Jessica Simpson’s prenuptial agreement stated that she had to pay Tony Romo $500,000 of her separate property for each pound she gained during their marriage and agreed never to weigh over 35 pounds. Luckily, the marriage did not take place, so the prenup was never put into action. If a clause like this seems controlling, it’s because it is. Although they may often be included in celebrity prenups, the likelihood of enforcement is probably pretty low.
Drug Testing
This is another clause popular with the celebrity crew, and was made famous most recently by Nicole Kidman and Keith Urban. To help promote a successful marriage, Nicole Kidman and Keith Urban, reportedly signed a prenup that addressed his ongoing struggle with substance abuse. The agreement stated that if Urban was found to be using illegal drugs, Kidman would be awarded $640,000 for every year the couple was married, and he would not be entitled to any division of the marital assets. A clause like this may or may not be enforced depending on the state the couple is in, and the level of depravity of marital assets. As discussed in other blogs, it is against public policy to deprive a party of assets or support such that they end up a public charge. However, in Keith Urban’s case, he likely has his own assets and is unlikely to become a public charge if such a clause were enforced.
Cash Payouts
These aren’t really lifestyle clauses per say, but rather financial arrangements based on length of the marriage. These are often called “lump sum payments,” and occur at certain milestones of the marriage. A good example of this in celebrity-land is Kim Kardashian, who per her prenuptial agreement with Kanye West will receive $1 million for every year she was married to Kanye, capping at $10 million. Because the couple was married, 6 years, she should receive $6 million.
Confidentiality Clause
A Confidentiality Clause in a prenuptial agreement is a far more common and much less “glitzy” version of a lifestyle clause, and includes provisions aimed at helping to ensure that neither you nor your future spouse can disseminate private information to the public. This clause is most certainly a staple in celebrity prenups, but is also helpful for us mere mortals as well. A confidentiality clause in a prenuptial agreement is especially useful if you own a part of a family business, if values of that business or other proprietary information is to be included in the prenuptial agreement, if the value of a trust or inheritance is something that you or your family members who have disclosed it do not want disseminated, or if you just want to make sure you and your future spouse agree on keeping all matters within confidential.
Non-Compete Clause
A non-compete clause is a great add-on if you are the owner of a business, have an ownership interest in a business, or have some super top-secret proprietary information that your soon-to-be spouse may have access to and if stolen, could use to compete with your super top secret venture. All kidding aside, this is an important clause if you are a business owner, or plan to own a business with your spouse in the future.
Social Image Clause
A Social Image Clause has increased in popularity in the past few years given the rate at which content is posted on social media websites, and the amount of sharing that goes on within these sites. A Social Image Clause pertains to how you and your future spouse must treat each other on social media- which is no laughing matter if you have ever gone through a break up with an over-sharer! The purpose of this clause is to help ensure that neither you nor your future spouse post embarrassing or disrespectful comments, photos or videos if your relationship were to fail. Oftentimes, this clause allows you to set an amount of damages if this content is posted.
Sunset Clause
A Sunset Clause is a beautiful sight, and not just because it’s name conjures up the image of the sun setting over a beach while you sip a margarita. Sunset Clauses have risen in popularity in recent years because they offer more flexibility to couples, and provide reassurance that should the marriage last a certain number of years, the prenup will not matter. A Sunset Clause allows a prenup to dissolve automatically at a certain specified date or upon a wedding anniversary. Depending on your financial situation, you may consider that you would like your prenup to remain in force and effect until a certain date, when you and your honey feel that you have been together long enough for “separate property” to become marital. At the future date you and your fiancée decide upon, your prenup will expire.
A Pet Clause
Furry children are children nonetheless, right? We know it is unjust and appalling, but under the law furry children are still considered property. Yikes. Many couples are choosing to include a pet clause in their prenuptial agreement to help decide custody and financial responsibilities of that fluff-child in the event of divorce. Many couples choose to assign responsibilities of pets in their Prenuptial Agreement because should they split in the future, it is very unlikely that a Court will come up with some elaborate shared parenting plan, custody arrangement or other financial arrangement for care of the dogs. Instead, most Courts will simply assign the pet to one party, or expect that the parties will arrive at an agreement.
In deciding whether to include this clause, you should keep in mind what expenses are associated with your pets, including vet costs, boarding costs if you travel, as well as the time commitments associated with caring for a pet. If you travel multiple days per week, you are probably not going to be available for a pet in the way that you need to be. Alternatively, let’s say you and your future spouse feel you are both well equipped to share ownership of your pets- well, there is an option for that too!
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].
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