Marital contracts: on the rise and covering more ground

Noting in a recent media article that “the stigma that was once attached to these agreements is fading,” one family law attorney echoes what many of her peers across the country say regarding prenuptial and postnuptial agreements, namely this: Such contracts are on the rise, and for a number of reasons.

Many divorcing couples in Illinois and Missouri are primarily motivated to execute marital contracts prior to or following marriage for the same reason that most couples nationally do so. In most instances, prenups and postnups are negotiated and signed with property division considerations in mind.

In some marriages, one partner might have amassed a considerable amount of separate property — from a business perhaps, or maybe through inheritance or savings — that he or she wants to keep exempt from any property division. Marital contracts are often popular with couples entering a second or subsequent marriage, and when there are children from prior unions. In such instances, financial matters are often of central importance in premarital agreements and postnuptial contracts.

Jeff Landers, a regular contributor of family law-related articles to Forbes, notes that increasingly more marital contracts are focusing these days on so-called “lifestyle clauses,” which centrally address matters other than financial considerations.

It is not hard to envision the vast universe of subject matter that lifestyle provisions can encompass. Contractual topics can range widely from the division of household responsibilities and child rearing to religious practices and visits from relatives.

As Landers notes, infidelity clauses are on the upswing, with stated penalties set forth in the event that one spouse cheats on the other partner.

A core question that arises with such a clause — as well as with many other lifestyle clauses — is whether a court will view it as being legally enforceable.

Many courts regard some lifestyle provisions that seek to punish a spouse for certain outcomes — you can’t gain weight; you cannot work outside the home; you cannot cheat — as violative of public policy and thus null and void.

Given that state laws on marital contracts, and especially lifestyle clauses, can vary, and that due care must generally be taken in the drafting and execution of such contracts, many people seek early, close and continuing input from a proven family law attorney.

Source: Forbes, “Can a prenup or a postnup with an infidelity clause deter a husband from cheating?”  Jeff Landers, March 13, 2014