The Problems with Lifestyle Clauses in Prenuptial Agreements

 Posted on March 16, 2019 in Prenuptial & Postnuptial Agreements

Because of Illinois’ no-fault divorce law, couples can no longer punish each other for acts such as infidelity when filing for divorce. Previously, spouses may have accused each other of immoral behavior in order to avoid paying spousal maintenance or keep a greater share of the marital properties. Now, irreconcilable differences are the only reason that couples can cite for their divorce. Some couples are instead using prenuptial and postnuptial agreements to try to penalize a spouse’s behavior. A lifestyle clause sets rules for a marriage that will result in a financial penalty if either spouse breaks them. However, you should understand the potential problems of lifestyle clauses before you include one in your agreement.

Enforceability

Lifestyle clauses are relatively new, which means that there is little legal precedent for them in courts. The individual opinions of the judge may determine whether a court enforces the clause. Some judges may reject any provision that penalizes a spouse for fault during a divorce. Other judges may allow the clause as long as:

• The terms of the clause are clear;
• The clause applies equally to both sides;
• Both spouses agreed to the clause; and
• The penalty is fair and does not violate divorce law.

It is important to include a severability clause if you create a lifestyle clause in your agreement. That way, the rest of your agreement remains valid even if the lifestyle clause is unenforceable.

Morality

An infidelity clause is the most common type of lifestyle clause, but spouses have used clauses to dictate a variety of behaviors, such as:

• Regular sex schedules;
• Interaction with friends and family;
• Child-raising practices; and
• Weight gain.

Some lifestyle clauses can be viewed as controlling or abusive. A court may not enforce a clause that punishes a spouse for gaining weight or visiting friends too often.

Provability

Enforcing a lifestyle clause means providing evidence that a spouse broke the terms of the clause. With an infidelity clause, the cheating spouse would need to admit fault, or the other spouse would need to present witnesses, testimony and documents that show the extra-marital activity. Spouses can dispute the meaning of the clause if its language is vague about the behavior or penalty.

Contact a Kane County Family Law Attorney

In some cases, spouses will use lifestyle clauses in a prenuptial or postnuptial agreement as deterrents against certain behavior rather than relying on them to be enforced in the event of a divorce. A St. Charles, Illinois, family law attorney at Goostree Law Group can advise you on what is most important to include in a prenuptial agreement. Schedule a free consultation by calling 630-584-4800.

Source:

https://www.huffingtonpost.com/entry/should-you-add-a-lifestyle-clause-to-your-prenup_us_57908891e4b0a9208b5f1876