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'Lifestyle clauses' adding a new element to prenups, postnups

In a previous post, our blog discussed how the stigma surrounding prenuptial agreements has dissipated to a considerable degree over the years, such that more and more couples planning a walk down the aisle are now including the execution of this document among their most important wedding plans.

In fact, it's not just soon-to-be married couples that are getting in on the practice, as an increasing number of married couples are now choosing to execute postnuptial agreements.  

Prenuptial agreements and postnuptial agreements are essentially legally binding contracts that set forth certain rights and expectations in the event of divorce. The main difference between "prenups" and "postnups" then is that the former is executed before the marriage and the latter is executed after the couple is already married, but in Minnesota there are other differences as well.

Interestingly, legal experts indicate that a growing number of people are now adding another element to their prenups and postnups, one that has more to do with behavior than actual finances. 

The element in question, known as a lifestyle clause, essentially sets forth certain behavior guidelines for the marriage. For instance, these clauses may dictate which spouse will perform the housework, how often the couple will go on vacation and even outline weight gain restrictions. Failure to meet these conditions may dictate that a spouse incurs financial penalties in the event of a divorce.

As if all this isn't interesting enough, many celebrity and non-celebrity couples are now including a very special type of lifestyle clause known as an infidelity clause in their prenups and postnups. As you might expect, this clause outlines financial penalties in the event a spouse is unfaithful.

According to legal experts, these infidelity clauses have been challenged in courts in several states and the results have been mixed at best, meaning that it may or may not be enforceable depending upon where you happen to live.

Still, many attorneys are advising interested clients to include such provisions in their prenups or postnups (along with a severability clause) despite the fact that it may be thrown out in court. The reason? It can actually serve as a deterrent to infidelity.   

"With an infidelity clause, not only does the person requesting the clause make their feelings clear about possible infidelity, the proposal of this clause alone can force couples to communicate about what they want out of their relationship, how they will treat each other and how they will communicate their feelings," said one attorney.  "This exercise alone can be beneficial, no matter whether the clause is ever actually used."

What are your thoughts on the idea of including a lifestyle clause or infidelity clause in a prenup or postnup? Is it something you would ever consider?

Source: Forbes, "Can a prenup or a postnup with an infidelity clause deter a husband from cheating?" Jeff Landers, March 13, 2014

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