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posted on 4/7/14

Before Jessica Biel married Justin Timberlake they reportedly signed a prenuptial agreement that included an “infidelity clause.” If he cheats on her, she—again, reportedly—will be compensated financially.

It has become trendy to include such “lifestyle clauses” in prenuptial and postnuptial agreements, and not just among celebrity couples. A lifestyle clause typically sets behavior guidelines that come with a financial penalty if violated. For example, a couple might decide in advance who will do the housework or how often their in-laws can visit. Infidelity clauses in particular are growing in popularity because a number of states have adopted no-fault divorce, which means that courts will not consider fault when determining maintenance payments.

How Illinois Courts Establish Maintenance Payments

Illinois is a no-fault divorce state when it comes to maintenance and asset distribution. While courts do not factor marital misconduct into their maintenance payment calculations, they do weigh other factors, including:

  • The marital property apportioned to each party;
  • Each party’s income and non-marital property;
  • The present and future earning capacity of both parties;
  • How long the marriage lasted;
  • The living standard established during the marriage;
  • Whether one party sacrificed his or her own education or career due to the marriage; and
  • Whether it is appropriate that the party primarily responsible for child care not seek employment.

Once established, a maintenance payment is not set in stone. It can be modified if there is a substantial change in one or both parties’ financial circumstances. It is also important to understand that maintenance terminates upon death, remarriage or cohabitation. And note that the cohabitation rule only applies to the party receiving maintenance. If he or she cohabits with another person on a “resident, continuing conjugal basis,” then the paying party is no longer obligated to make maintenance payments, unless the parties have stipulated otherwise.

Deciding Whether a Prenuptial Agreement is Right for You

It is an unfortunate reality that not all marriages last, which is why all couples contemplating marriage should also consider entering into a prenuptial, or premarital, agreement. A premarital agreement must be in writing and voluntarily signed by both parties. (The agreement is not valid if one of the parties is coerced into signing it.) A premarital agreement takes effect once the parties marry and can only be amended or revoked by a written agreement voluntarily signed by both parties. In addition to a lifestyle clause, a premarital agreement might include one or more of the following:

  • Each party’s rights and responsibilities regarding property acquired before and during the marriage;
  • How a will should be written so that it will reflect the terms of the premarital agreement;
  • Maintenance terms and other terms regarding asset distribution in the event of separation or divorce; and
  • Designation of  which party is responsible for paying attorney fees in the event of dispute.

A premarital agreement can provide you with peace of mind that if the worst happens and your marriage does not work out, you will be protected financially. Our experienced Illinois divorce attorneys at The Law Offices of Thomas Glasgow, Ltd. can help you prepare a premarital agreement and also can help you secure equitable maintenance terms post-divorce. Contact us for assistance if you live in Chicago or its surrounding counties.