§ 4.10 Contractual Provisions Regarding Matters Other Than Property or Support

• Jurisdiction: United States
• Publication year: 2021

§ 4.10 Contractual Provisions Regarding Matters Other Than Property or Support

Subjects other than those regarding financial matters are sometimes addressed in marital contracts.

For example, parties have been encouraged to include in a marital contract many other provisions related to the parties' ongoing relationship, such as the parties' respective responsibilities for household tasks and birth control, the ramifications of (and penalty for) infidelity, how children will be raised, how disputes will be resolved, and who will decide whether to terminate a pregnancy if one occurs.⁴⁸⁰ For a number of reasons, the courts have wisely been hesitant to enforce such provisions. Some provisions, such as those bearing on religion, present serious constitutional issues,⁴⁸¹ while others are relatively trivial matters that should not consume judicial resources.⁴⁸² It is also possible that some contractual provisions would be litigated while the relationship continued,⁴⁸³ and courts are ill-suited to mediate disputes between parties to an ongoing relationship. Furthermore, courts may realize that such parties generally have interpersonal problems. Thus, the contract claim would only be symptomatic, and the parties would be better served by a counselor than by a judge.⁴⁸⁴

Even those provisions that could be litigated only after the termination of the relationship would present complex problems. For example, the parties might execute a contract that provides for liquidated damages in the event one spouse is unfaithful to other. If such provisions were considered enforceable, much of the trauma and divisiveness that was eliminated from the divorce process with the advent of no-fault divorce could resurface in breach of contract actions.⁴⁸⁵

Consequently, many contractual provisions dealing with subjects other than property division or support upon dissolution of the marriage probably will not be enforced by courts. Still, discussion of such provisions could be quite useful to a couple to clarify the expectations of each, as well as to establish ways to avoid or minimize future disputes. For example, a newspaper article discussed a variety of unusual provisions found in premarital agreements, such as financial penalties for failing drug tests, impoliteness to in-laws, or watching more than one football game on a Sunday.⁴⁸⁶

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Notes:

^[480] See Oldham, Book Review, 54 U. Colo. L. Rev. 469, 472-473, 500-501 (1983).

^[481] Id., 54 U. Colo. L. Rev. at 472-473. For...