Following up on yesterday’s blog, a recent article on marketwatch.com discussed the recent increased influx of strange “lifestyle” clauses appearing in prenuptial agreements.  These “lifestyle” stipulations — provisions included in a prenuptial agreement in an attempt to dictate the ideal or preferred behavior of one or both parties to a marriage –are showing up more frequently these days, as people attempt to use a prenuptial agreement as a means of controlling and influencing their partner’s behavior.

Examples of these “lifestyle” clauses range from imposing a penalty on a partner if they gain too much weight to outlining how many times they visit their in-laws, even going so far as to penalize a partner for cursing.  Of course, one of the more popular clauses to include in a prenuptial agreement is an adultery clause, particularly with celebrities.  Tom Cruise even went so far as to have a clause in his prenuptial agreement with Katie Holmes that prohibited her from publicly dating another man for a certain period of time following their divorce, which caused Ms. Holmes to hide her relationship with Jamie Foxx until just recently.  It has even been reported that Jessica Biel is to receive $500,000 if Justin Timberlake is unfaithful during their marriage per their prenuptial agreement?

Would a New Jersey Court enforce one of these “lifestyle” clauses in a prenuptial agreement?  While “fault” has been eliminated as a factor for purposes of alimony and equitable distribution, causes of action like adultery can still be pleaded at the time of divorce filing, although it is typically unrealistic to assume it will affect the distribution of the marriage. As mentioned in yesterday’s blog, the Court still evaluates the whether a party entered into a prenuptial agreement voluntarily, so defenses like duress or coercion can be raised.  However, even if a New Jersey Court may declare a particular clause unenforceable in the future, the clause itself may help build a strong, solid and lasting relationship with your partner by communicating with your future spouse about your reasonable expectations for each other moving forward in your marriage.

The Law Offices of James T. Rosenberg recommends that any couples considering including any lifestyle clauses in a prenuptial agreement to consult with an experienced and reputable attorney who understands the requirements of enforcing a prenuptial agreement under New Jersey law.