Weight Loss Clauses, Cheating Clauses, and Other Crazy Prenups - The Chicago Family Law Blog

The Chicago Family Law Blog

Weight Loss Clauses, Cheating Clauses, and Other Crazy Prenups

Crazy? Or brilliant? Sure, a weight loss clause in a prenup is demeaning, and a clause that pays bonuses based on the numbers of babies birthed is a bit unfair. But when two intelligent adults come to an agreement on marital expectations, isn't that exactly the point of a prenuptial agreement?

The New York Post recently interviewed a divorce lawyer who described some of the more preposterous provisions of prenups she's put together for clients -- for example, a payout for the wife if the husband cheats, and the wife not being allowed to cut her hair.

One truly absurd prenup sought to force the wife to have an abortion if pregnancy occurred, as the husband was already in his 40s and did not wish to have children, the lawyer told the Post.

Is that even legal?

These prenuptial lifestyle clauses sound absurd, and indeed, some -- like the purported abortion requirement -- are likely unenforceable due to unconscionability and unfairness.

Another off-the-wall example required a $10,000 payment each time the husband was rude to his in-laws. Depending on the man's income, that might be utterly unfair, especially if he's married to Archie Bunker's daughter.

Then again, under Illinois law, as long as the agreement conforms to the following conditions, it will generally be upheld:

  • The marriage must actually happen;
  • The agreement must be in writing;
  • It must be signed by both parties;
  • It must be entered into voluntarily;
  • It must not be unconscionable (i.e. one-sided, against public policy, or flat-out unfair) when entered into unless:
  • Full and fair disclosure of all assets was made when the agreement was signed, or
  • Disclosure was knowingly waived, in writing, or
  • The parties knew, or should have known about each other's assets.

We'd also recommend that each party is represented by their own attorney. Doing so prevents one person from later claiming that he or she was unfairly pressured or didn't understand the terms of the agreement.

So, dear Illinoisans, prenup away! Set your expectations for the marriage ahead of time, in writing. Based on a recent study, a provision requiring the wife to do the majority of the housework might even lead to a longer marriage. Of course, good luck getting her to agree to that.

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