News that prenuptial agreements are soaring in popularity is no surprise. But it's no longer just assets and alimony. And it's no longer only about what happens if and when the marriage fails. Prenups are now leaving the bank and entering the bedroom, covering the most mundane aspects of day-to-day marital life -- not after, but during the marriage! When my girlfriend shared with me one of her so-called "lifestyle clauses," I almost fell over. Not that I'm against defining expectations and communicating a detailed understanding of what life together would entail, but isn't who takes out the garbage a bit too trivial to document? I had never heard of such a thing and thought, truly, this can't be true. So I did a bit of research into these types of clauses in modern prenups and here are some of the popular ones:
Intimacy clauses govern how often a couple must have sex. (One elderly pair apparently settled on once a month, while a younger couple agreed to have "healthy" sex five times a week.) Other couples have listed mandatory sexual positions. (Weird, but true.)
Bad boy/bad girl clauses impose fines ("fling fees") for infidelity. (Catherine Zeta Jones is believed to have had one written into her agreement with Michael Douglas).
Child rearing clauses can include such specifics as whether the child will be raised as a vegetarian, and what school he or she will attend. In marriages between people of different religions, children's religious upbringings are negotiated in advance, including which holidays will be celebrated and how. A no-diaper clause specifies that the couple will not have children!
In-law clauses are increasingly common. One prenup barred a mother-in-law from sleepovers at the marital home, while others have regulated the amount of time a couple may spend at their in-laws home (no more than two consecutive days, in one case).
Weight clauses typically prohibit one spouse (guess which one) from gaining too much weight and imposes a fine for each excess pound gained!
Time clauses restrict free time, work time and time in general. One agreement went so far as to limit a spouse to watching one football game with friends per Sunday. I read about a prenup which specified how many hours a workaholic spouse could work during the week (requiring him to be home for dinner by 6:00 PM), and yet another which dictated the age at which a partner was expected to retire (apparently, one spouse did not want the other suddenly hanging around the house all day). And yet another agreement fined a partner's lateness (at $100 per minute).
Wow. So my girlfriend isn't alone. Who knew? And personally speaking, while my husband is pretty awesome all around, I imagine now that I could have extracted something particularly special, like foot rubs on Friday evenings, breakfast in bed on Sundays, or even a mandatory compliment whenever he sees me naked! I would trade sex for that! Darn, too late for me!
But don't all rush to the lawyers. Although these lifestyle clauses are gaining in popularity, they are not enforceable in court. With no-fault divorce laws in every state, it's not as if a spouse needs to prove that the other breached any marital expectations. Imagine the court getting involved in the Sunday football dispute, or trying to decide what constitutes "healthy" sex? What would the damages be for having a child notwithstanding a no-diaper clause? Imagine wasting the court's time on whether a spouse was late for dinner? So, for the moment, prenuptial agreements remain relegated to the division of assets and alimony. (Though maybe some spouses are hoping otherwise...)
Again, I believe it is wise to address and clarify day-to-day lifestyle matters before getting married, but pretty bizarre to contract so. I mean, who can predict what the future holds and expect one's partner to consistently meet particularized concrete marital expectations? And who wants such consistency anyway? What if the mood strikes on a Sunday, but that's not in the agreement? And if you proceed with Sunday intimacy, does that satisfy the Tuesday requirement? As for my marriage, some months he wants a little more. And some months, it's me. Some months he works a little harder and isn't exactly home for dinner. And some months, I'm not so good about entertaining the in-laws. And, not surprisingly, we're both a few pounds heavier than we were when we married!
Oh well. For better, for worse -- isn't that what marriage is all about?