Prenuptial agreements are increasingly becoming mainstream. Not only do you see only the very wealthy or high-profile couples doing them, but lots of people who simply have specific assets or marital interests they want to protect are taking this very important, and valuable step before marriage.
And while the meat and potatoes of most prenups are the terms relating to full disclosure of financial terms and division of assets upon separation or death, other terms “governing” the marriage or relationship are often added. Care must be taken, however, not to cross the line between terms that are uniquely specific and clauses that may be unenforceable.
Understanding lifestyle clauses
Contracts of any kind are most enforceable when their terms are clear and specific. It is important to use precise language, objective measurements and distinct descriptions, as ambiguity or overreaching are the enemies of enforceable contracts.
It can become daunting or bordering on impossible to craft enforceable provisions when parties contemplate regulating their marital expectations with what has become known as lifestyle clauses. These terms refer to those that are not financial but have to do with personal habits and behaviors. Infidelity, appearance standards and housework allocations are some of the lifestyle clauses making their way into prenups, and they can be grounds for contest.
While lifestyle clauses may be part of a prenup, they could be unenforceable if they are unreasonable, overreaching or unclear. As such, parties should think carefully before including them, and seek the advice of an experienced lawyer who can provide guidance on how to do so in a way that increases the likelihood of enforceability.
Knowing whom to trust
There may be more than meets the eye, in prenup negotiations. One or both of the soon-to-be spouses may be sharing terms with other family members, business partners or even their own children. Those non-parties reviewing, critiquing and suggesting additional terms for a pre-nup may not be doing so for the best interests of one of the parties. They may also lack a legal background, and as such, they could push for unreasonable or unenforceable terms.
Even if those non-parties will soon be family, or like family, to both members of the couple, when it comes to prenup negotiations, protection of separate interests is key. In most cases, that means reaching out for guidance from someone who is only focused on the best interests of the party he or she represents, such as an experienced personal attorney.
Having a prenup can be a wise decision for many reasons. However, before you create or sign one, it’s best to familiarize yourself with the guidelines for an enforceable, valid agreement. Failure to do so could mean crossing the line and creating a prenup that does not have the protection you are seeking.
