Lifestyle clauses in marital contracts: Are they enforceable?

As big of a deal as marital agreements generally seemed to be even a few short years ago, such contracts are much more common — if not exactly commonplace — in Georgia and throughout the rest of the country these days.

A marital contract is most typically understood to be either a prenuptial agreement or a postnuptial contract, depending on whether partners reach their contractual understanding prior to or following marriage.

The subject matter of a marital contract can range widely, but most commonly focuses upon financial matters, with separate property being clearly identified and isolated for protection in the event of a marital split and related division of assets.

That is not always the case, though, as noted by Jeff Landers, a divorce author, in a recent article he penned for Forbes. Landers notes the growing use of marital contracts — especially prenuptial agreements — as legal vehicles for setting forth marital understandings regarding “lifestyle” choices rather than purely financially related considerations.

Think marital cheating, for instance. That is certainly a lifestyle choice that is quite often, obviously, a deal breaker for many wedded partners. Landers notes that prenups are increasingly featuring clauses focused upon infidelity and its consequences inside a marriage.

There is a central question attached to an infidelity clause, as follows: Is it enforceable? In other words, does its presence result in a marital contract lacking legal force?

The answer: Maybe yes, maybe no. As with so many things in life, it depends. Courts in some states believe that public policy does not permit judicial rulings on matters relating to morals and lifestyle choices. In other states, court rulings have upheld such clauses.

It is a good idea in any case for any person who is thinking about negotiating and executing a marital contract to secure the knowledgeable assistance provided by a family law attorney experienced with such contracts. There are a number of requirements associated with virtually all legal documents, and knowing that they have been duly attended to can greatly increase the confidence of an affected party.

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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