In ye days of yore, prenuptial agreements were relegated strictly to the realm of property and finances. However, over the decades, the once well-defined prenuptial agreement boundaries have since gotten a little blurry.
These days, it’s not uncommon to see prenuptial agreements that stipulate anything from weight gain, to cheating, to who has to do the dishes on Saturday night.
While we’d like to affirm the sentiment that, “All’s fair in love and war (and a prenuptial agreement),” the truth is, things aren’t quite as simple as that, and these “lifestyle clauses” aren’t always enforceable.
Here’s what you need to know about how Texas handles lifestyle clauses in prenups, whether they’re enforceable, and when you might want to consider including one in your prenuptial agreement.
Prenuptial Agreements: 101
A prenuptial agreement is a contract that an engaged couple can draft, prior to marriage. This document can be used to do a lot of things, but its main purpose is to help simplify property and financial matters, if the couple ever gets divorced.
In order to be enforceable, a prenup must be signed by both parties, executed before marriage, and be fair to both sides.
According to the Texas Family Code, this means you can’t threaten, cajole, or force someone into making the deal. In addition, each partner must disclose all known property and assets, as part of the agreement. Texas legislation also requires that each party retain their own separate counsel, as a part of prenup negotiations.
Who Makes a Prenup?
Historically, prenups have had the unpopular stigma of being used only by the extremely wealthy—a tool wielded to safeguard the family’s finances against the wily whims of a gold-digging spouse. However, those views are steadily changing, and prenups are now on the rise.
These agreements can be particularly beneficial to those who have children from another relationship, are entering their second marriage, or have a business that needs safeguarding against divorce.
That being said, almost everyone can benefit from a prenup, and these contracts are becoming increasingly more popular in the younger, millennial crowd.
What Can a Prenup Include?
In the past, Texas courts have enforced prenuptial terms that:
- Keep property separate;
- Keep future earnings separate;
- Insulate pre-marriage retirement funds or investment accounts from divorce;
- Safeguard family heirlooms against divorce;
- Protect one spouse from the outstanding debt of the other;
- Provide for children from another relationship;
- Outline spousal support; and,
- Address the division of property, upon death or divorce.
Prenuptial agreements have also been used to outline certain financial obligations and responsibilities, while married. Things like who’s responsible for what bills, property maintenance, and keeping paychecks separate.
However, whether it’s the influx of new, young users (or just a heightened awareness of celebrity marital affairs), the once clear-cut parameters of what a prenuptial can and cannot contain are starting to get a little blurry.
Enter: the lifestyle clause.
Unlike the above-mentioned terms, lifestyle clauses are conditions that have nothing to do with property or finances in a couple’s marriage. These terms usually attach a financial ramification for violating a prohibited behavior of some kind, and have included things like:
- Penalties for infidelity;
- The frequency sex;
- Random drug testing;
- Acceptable weight gain/loss margins;
- Chore charts;
- Pet custody;
- How children will be raised;
- The ratio of home-cooked meals to takeout;
- Who has control over the remote;
- The frequency of in-law visits; and even,
- What kinds of things can and cannot be posted on social media.
This list isn’t exhaustive, as lifestyle clauses can pretty much be whatever a couple wants, and range from the reasonable, to the completely outrageous. (There are even rumors that Tom Cruise had a lifestyle clause preventing Katie Holmes from publicly dating anyone within a certain time after their divorce.)
Regardless of whether or not this is true, lifestyle clauses (like prenups) are not enforceable while a couple is married, and really only become relevant, if they get divorced.
But what are we to make of these terms? Can you really be prosecuted for hogging the remote control during your marriage?
Enforcing Life Clauses
You might have already guessed it, but courts don’t typically like lifestyle clauses all too much. Judges are in the business of enforcing laws with clear-cut rules that require objective analysis, and come prepackaged with safeguards to prohibit abuse.
When you ask the court to enforce a lifestyle clause, you’re essentially requesting that your judge act as a kind of morality police in your marriage, which isn’t exactly what they signed up for, when donning the robes.
That being said, there are only a few select things that Texas legislators have specifically prohibited in regards to prenuptial agreements (and they aren’t about lifestyle clauses). Instead, Lone Star couples cannot include prenup terms that:
- Dictate legal or physical custody;
- Make directives about child access or visitation;
- Limit or restrict child support amounts; or,
- Induce one spouse or the other to commit a crime, or engage in other illegal behavior.
Even with these limitations in place, that still leaves a lot of wide-open space for some weird prenup clauses to be placed (and possibly enforced). Especially when you consider that Texas is one of the few states that still allows for fault-based divorces.
Fault and Lifestyle Clauses
Many states won’t even consider enforcing a lifestyle clause, since the very idea flirts too heavily with fault.
In a fault-based divorce, the court is allowed to consider blame when determining things like marital property, debt, and alimony, and each spouse is held financially accountable for their role in the marriage’s breakup.
Fault-based divorces are messy, toxic, and—quite frankly—archaic, which is why most states have done away with them. Texas, however, is one of the few remaining holdouts.
The continued existence of fault-based divorce in Texas lends some weight to the idea of enforceable lifestyle clauses—especially the fidelity kind, since adultery is already a valid ground for a fault-based divorce, and the court is somewhat accustomed to acting like a kind of moral enforcer.
In reality, however, there’s no way to tell for sure if your lifestyle clause will be enforceable, until you actually get divorced.
Lifestyle Clauses in Prenups: Proceed with Caution
When drafting your prenup, we suggest not trying to test the limits of Texas’s fault allowances. Be reasonable with what you put in your prenuptial agreement, and before adding a lifestyle clause, ask yourself:
- Can it be verified?
- Is it reasonable?
- Are the terms fair to both sides?
Even if you answer yes to all of these questions, it’s still a good idea to proceed with caution.
While lifestyle clauses might sound like a great behavior enforcer, if you can’t create healthy, respectful habits without a document to babysit you, then maybe what you should be asking isn’t, “What can I get away with putting in my prenup?” but instead, “Do I really want to marry someone who wants to cap how many post-marriage pounds I can gain?”
We’re just saying.
Prenuptial Agreement Attorneys in Texas
If you have more questions about how Texas handles lifestyle clauses in prenups, and are wondering whether certain provisions might be enforceable in your situation, we want to hear from you. Call the Neal Ashmore team today at (972) 436-8000, or schedule a consultation online, and let us help you draft an agreement that meets your individual needs.