It is recommended that couples each hire an attorney to represent them, be prepared to disclose all of their assets and debts, and be ready to discuss what they wish to remain "separate property" and "marital property."
Full and fair financial disclosure. Full and fair disclosure of assets is essential to enforcement of a prenuptial agreement, and both parties must adhere to this important disclosure requirement. This disclosure may include income, bank accounts, business ownership, investments, and properties owned by either partner, debts, etc. If either party fails to fully and fairly disclose all assets, a judge may deem the prenuptial agreement as unenforceable down the road.
Separate Property vs. Marital Property. Prenuptial agreements typically include terms that identify which of each spouse’s property would be considered “separate” property and “marital” property. Also addressed, is how marital property should be divided in the event of a divorce, and whether spousal support is to be paid upon termination of the marriage.
Lifestyle Clauses- Enforceable? Some couples choose to include “lifestyle” clauses in their prenuptial agreements. A lifestyle clause sets behavioral expectations for the parties during their marriage and may provide for financial penalties in the event that the party fails to adhere to the clause. These are especially popular in celebrity prenups, where infidelity is addressed and punished. Reportedly, if Justin Timberlake is unfaithful during his marriage to Jessica Biel, Jessica is entitled to compensation in the amount of $500,000.00 according to their prenuptial agreement terms. Now, are these actually enforceable? Each state has its own legal framework for how courts examine and enforce a prenuptial agreement. For example, California has held that "infidelity clauses" in are unenforceable because they violate state policy favoring a no-fault divorce. In Massachusetts, a court will enforce a prenuptial agreement only if it finds the agreement was fair and reasonable both at the time of execution and at the time of enforcement (i.e. at the time of divorce). On the other hand, some states examine the prenuptial agreement only at the time of execution or only at the time of enforcement.
Other individuals having considered including “social media” clauses in their prenuptial agreements. Similar to the infidelity clauses, this clause outlines the limits of social media behavior for each spouse during the marriage. For example, a social media clause may forbid the spouses from posting certain content on their public profiles such as Facebook or Instagram. The clause may also detail acceptable contact between the parties and third parties on private features of social media sites such as Facebook messenger. Failure to adhere to the guidelines set forth in the prenuptial agreement may result in a financial reward to the compliant spouse at the expense of the noncompliant spouse.
While many couples find that the addition of lifestyle clauses to their prenuptial agreements may help them successfully identify common goals for spouse conduct during their marriage, they should ensure that the clauses are drafted very, very carefully so that the language reflects their intent. For example, an infidelity clause must specifically state what conduct is considered “cheating”, and a social media clause should be drafted so that the parties' expectations are clear. Prior to including these clauses, there should be extensive communication and agreement between future spouses and their attorneys about their goals and what they intend to outline as prohibited behavior, as well as the likelihood of enforcement in each instance. The answer to the question of enforcement is highly dependent on the individual situation.
The process of negotiating a prenuptial agreement that includes a lifestyle clause may in itself help build the foundation for a secure and lasting marriage, even in the case where the desired provisions may not be fully enforceable. Communication with your future spouse about your respective expectations and goals for each other during the course oof your marriage may help you identify issues and problem areas that need to be addressed and resolved.