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Is a lifestyle clause an option in a California prenup?

Although they aren't a new tool, premarital contracts are becoming much more widely used across the nation. These contracts set terms that govern division of retirement assets, business interests, real estate or alimony should the couple divorce. This isn't the only type of term, lifestyle clauses can be included as well that might be tied to a property consequence, but they govern behavior during a marriage.

Celebrities have begun adding infidelity clauses that penalize a spouse that cheats. As with any other family law issue, validity and use depend on the law of a particular jurisdiction. Some of the readers of our Sacramento family law blog may be asking "Can I use a clause like this? Will it work?"

The truth is that some states do allow a clause that penalizes a spouse that cheats, like lowering the spouse's potential alimony award. In California, these clauses have been found to run contrary to the public policy of no-fault divorce laws. Thus, they are generally found to be unenforceable in the state. Can these clauses prove useful even without legal enforceability? Why even include this clause?

Some professionals argue that yes, these clauses can help couples obtain the desired result even if a judge won't enforce it. How? In some cases, a cheating spouse may agree to the terms of the contract in order to keep the dispute out of the public eye. Under these circumstances, make sure to add a severability clause to ensure that if one term if found unenforceable, it doesn't affect the entire contract.

In other cases, the discussion about adding a cheating clause can help force a couple to put their expectations about infidelity on the table. It can force them to clearly communicate their feelings now, before the marriage. Is this an unforgiveable act in their eyes? Why? What do they consider cheating? Kissing? An emotional relationship?

These contracts involve more than a discussion about what property or behaviors a couple wants to include in the agreement. The agreement must be carefully drafted based on the state law in which it is drafted. Enlisting the aid of an experienced family law attorney to help in Sacramento is more than a good piece of advice.

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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Victoria S. Linder Law Office
5303 Folsom Boulevard
Sacramento, CA 95819

Phone: 916-905-4805
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