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Infidelity Penalties and Other ‘Lifestyle’ Clauses in Prenuptial Agreements in Florida

Recently, singer/actor Justin Timberlake made the celebrity gossip and entertainment news after he was spotted holding hands with his costar from his latest movie, fueling rumors that Timberlake was having an affair with the actress. Timberlake and his wife, according to the New York Daily News, have a prenuptial agreement that says that, if Timberlake cheats and the couple divorces, his infidelity would result in his wife receiving an extra $500,000 in the divorce settlement. That sum would be small compared to actor Michael Douglas, who would owe an extra $5 million if he cheated on wife Catherine Zeta-Jones and the pair divorced, according to the Daily News.

These types of provisions in prenuptial agreements, which are generally dubbed “lifestyle’ clauses, can address everything from sexual fidelity to a spouse’s weight to the frequency of sex…even down to how often the in-laws visit, and they are increasing in popularity. If you desire to learn more about the creation or the enforcement of your prenuptial agreement with a lifestyle clause, be sure to retain an experienced Florida prenuptial agreement attorney.

If you are in a position of high visibility in South Florida business and/or society, you probably have certain expectations of your partner… expectations you might desire to be placed in a prenuptial agreement. As a person of social and/or professional prominence, you might be concerned that a husband who notoriously cheats on you could damage your standing in society, and so desire a fidelity clause in your prenup. Alternately, you might be a high-powered business professional who’s concerned that a wife whose appearance goes from South Beach supermodel to obese could harm your business prospects by negatively impacting your professional “brand,” thereby making you interested in a weight (or similar appearance) clause in your prenup.

The question you may have about these kinds of clauses is… are they enforceable in Florida? The answer is that, with a few exceptions, they generally are, regardless of how progressive or unenlightened a provision might seem to be. That’s because Florida law has a very strong policy of supporting the right of two parties to enter into a binding contract.

A clause’s ‘unreasonableness’ often won’t, by itself, void the provision

The major barriers to enforcement of a contract generally involve proof of fraud, duress or coercion. In most situations, unreasonableness is not a basis for getting a contract, including a prenuptial agreement, thrown out. So, even if your prenuptial agreement includes terms like a strict body weight cap for the wife or a strict limit on the number of visits the husband’s mother may make to your home, this may be enforceable.

In the past, Florida courts have said that the fact that one party “apparently made a bad bargain is not a sufficient ground, by itself” to invalidate or even modify an otherwise valid agreement. As the Supreme Court ruled in a marital settlement agreement case in 2001, there are many reasons why a party might knowingly and voluntarily make a “bad bargain” financially and sign an agreement that appears unreasonable. The spouse might make that choice freely and intelligently based on other factors, like the emotional benefits of ending the divorce litigation and obtaining closure, even in spite of its apparent unreasonableness.

Similarly, a prenuptial agreement does not have to be reasonable or a good bargain for both spouses to be enforceable. Even if it might appear unreasonable for a woman to sign a prenuptial agreement that requires her to pay a substantial monetary penalty if her body weight ever exceeds 125 pounds, that bad bargain probably isn’t enough, by itself, to invalidate the agreement or the clause. The woman may have other non-financial reasons for signing the contract, such as a strong emotional desire to marry that particular man and/or a strong degree of confidence that she would never be at risk of violating the weight provision. The key thing is that, as long as both parties signed the deal intelligently and voluntarily, free of coercion, duress or fraud, then the agreement probably is enforceable.

If you are considering a prenuptial agreement, including one that has ‘lifestyle clauses,’ it is important to be sure that you have an agreement that is properly written to stand up to court scrutiny and be enforceable, in case the marriage ends in divorce. To ensure you’re getting that, you need skillful legal counsel. Rely on the knowledgeable and experienced attorneys at Stok Kon + Braverman help you accomplish your goals.

Contact us online or by calling (954) 237-1777 to schedule your consultation and find out how this firm can help you.

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