Including ‘Lifestyle’ Clauses in a Maryland Prenuptial (or Postnuptial) Agreement

Money is often a powerful motivator. That’s true whether you’re a parent working out a child’s allowance or a spouse-to-be working out the terms of your prenuptial (or postnuptial) agreement. In addition to arriving at terms with which both you and your soon-to-be spouse can live, making a prenuptial agreement as successful as possible also involves limiting the contract to subject matters that are enforceable in courts of law. Whether you’re deciding what subjects to include or negotiating the numbers, an experienced Maryland divorce lawyer can provide crucial assistance in drafting and executing your prenuptial agreement.

Recently, Yahoo! Finance AU reported on the “most ‘shocking’ clause” an Australian divorce lawyer – who had practiced law there for more than 20 years — had ever encountered in a prenuptial agreement. In a podcast interview, the attorney recalled a wealthy client who desired a provision that required his wife-to-be to avoid gaining weight or else suffer a financial penalty. Specifically, the prenuptial agreement said that “for every 10 pounds the wife gained in the marriage, she would lose US$10,000 (AU$15,000) a month in alimony,” according to Yahoo!

Judging by this interview, Australia apparently grants parties to a contract very strong freedom to construct those agreements as they wish. As the attorney explained, “The court said, ‘This is a disgusting provision. I don’t know why you married this person.’ But it’s enforceable. It’s a contract… they may be ridiculous rules but you agreed to them. And you have a right to do that.”

Here in the United States, these prenuptial terms – often called “lifestyle” clauses – also exist. During his engagement to Jessica Simpson, football quarterback Tony Romo and the singing star signed a prenuptial agreement that required Simpson to maintain a body weight of 135 pounds or less, and called for Romo to receive $500,000 for every pound by which Simpson exceeded her 135-pound maximum.

In addition to weight restrictions, lifestyle clauses can cover an array of behaviors ranging from the performance of domestic chores to the frequency of intimate contact to refraining from using drugs or alcohol. (Actress Nicole Kidman and singer Keith Urban have a prenuptial agreement with a “cocaine clause” that severely penalizes the singer if he fails to maintain sobriety.)

Infidelity Clauses: One that Was Enforceable

One type of lifestyle clause that Maryland courts have specifically addressed is an extremely common one: the infidelity clause. In a 2023 case, the Supreme Court looked at a postnuptial agreement between a woman who served as the White House social secretary during the Trump Administration and her husband, the grandson of wealthy horticulturist Rachel “Bunny” Mellon. The agreement called for the husband to pay the wife $7 million if he strayed from the marriage.

Four years later, the husband cheated. The wife went to court and the courts said the penalty was enforceable. The trial court pointed out that, while the husband’s agreeing to the $7 million penalty arguably was “improvident,” that alone did not make it unconscionable. In upholding that outcome, the Supreme Court said that it was “not holding that spouses may impose on each other monetary penalties unrelated to marital assets or unrelated to the division of such assets during a divorce; rather; the court is narrowly holding that spouses may allocate marital assets in the event of divorce based on adultery.”

Part of creating the best possible prenuptial (or postnuptial) agreement is knowing what the law says you can demand in your agreement… and what you can’t. For this and other vital information and advice, look to the experienced Maryland family law attorneys at Anthony A. Fatemi, LLC. Contact us today at 301-519-2801 or via our online form to set up your consultation to learn more about putting this office to work for you.

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