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Can You Include Behavioral Clauses in Your California Prenup?

You may have read in celebrity or tabloid magazines about this or that celebrity having a prenuptial agreement including a particularly tawdry “behavioral” or “lifestyle” clause relating to the behavior of the spouses. The most common behavior these clauses target is, as you might guess, spousal infidelity. According to the NY Daily News, Jessica Biel and Justin Timberlake’s prenuptial agreement included a $500,000 penalty if either of them cheated on the other. In the case of country singer Keith Urban, he would not be able to receive any money in a divorce from his actress spouse Nicole Kidman if he used cocaine. And, in more wholesome news, Mark Zuckerberg’s wife Priscilla Chan asked for a minimum amount of weekly “quality time” from the Facebook founder in a prenuptial agreement.  Whether these accounts are true or merely urban legend is up for debate, but what is a fact is that these behavioral clauses are not necessarily enforceable, and, in California, the courts have said they are indeed unenforceable.

California Courts Rule Behavioral Clauses Are Unenforceable

A California appellate court dealt with the question of behavioral/lifestyle clauses in the 2002 case of Diosdado v. Diosdado. There, a wife and husband had actually created a postnuptial agreement (an agreement between two spouses regarding a potential divorce entered into after a marriage) after the husband had cheated on the wife. The agreement said that if either party cheated on the other after the agreement was signed, that party would have to pay an additional $50,000 in a divorce above and beyond whatever other property and spousal support obligations were ordered.

The court ruled that it would not enforce the behavioral clause on the grounds that it would be against California’s public policy of allowing divorce for any reason and would thus introduce a concept of “fault” into divorce proceedings that the state had done away with in the 1960s, stating:

The family law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.

Don’t Create a Prenup Without Experienced Guidance

Even when spouses know that behavioral clauses are not enforceable in court, some still want to include such clauses as a written statement of both parties’ obligations to one another in the marriage with regard to fidelity, time, and other lifestyle choices. While the motivation for both spouses to clearly state their obligations to one another and follow through on them is noble, it is important to work with an experienced California family law attorney in addressing such issues as improper drafting of a prenuptial agreement can potentially result in the whole agreement being declared invalid. To schedule a consultation regarding any questions about prenuptial agreements in California, contact one of the family law attorneys at Kearney Baker today at 626-768-2945.

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