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It takes only three little words to say "I love you," but the contracts that back up relationships are getting longer and longer—and more unusual in context.
For years the press has been reporting on alleged lifestyle clauses within the prenuptial agreements of the rich and powerful—financial penalties if a partner doesn't maintain a particular weight; restrictions on gambling; promises not to use illegal drugs or abuse alcohol; even specifics on the minimum hours per week a couple must spend together.
While premarital and cohabitation agreements address issues that come into play only when a relationship ends, so-called "love contracts" placed within these legal documents are meant to lay the groundwork to keep couples together. And now the concept has caught on with the general public—for those officially married or not.
According to New York City-based attorney Ann-Margaret Carrozza, couples are "more and more receptive" to using love contracts. These lifestyle clauses within relationship contracts, she said, can act as a couple's blueprint and course corrector.
Carrozza, who has a database of 10,000 clients that she called "unscientific but statistically significant," estimates that a little under one-third of relationship agreements she now reviews include lifestyle clauses, and it's a trend that has increased by another 10 percent in the past year alone.
"This is part of a trend where people are looking at estate and life planning in a more creative fashion," Carrozza said. "Years ago it was 'Let me get a will so we know who gets my stuff when I die' and that was the end of it." The family lawyer believes the practice will continue to rise, related to the broader customization trend in U.S. society.
Contract clauses can range from social media no-nos—such as uploading embarrassing images to Facebook—to more aspirational aspects of a relationship, such as reading the same book together or taking cooking classes at a community college. And as offbeat as they may sound, these contract clauses can be valuable tools for setting marriage goals.
"People say it's unromantic to live by a contract, but married couples are already doing that," Carrozzo said.
The downside—and it's a big one—is making the mistake of thinking lifestyle clauses, even within legal contracts, are enforceable in court. In most cases, the clauses have no legal teeth. In fact, some family law attorneys won't even handle them.
"You may read about it in the press, but following every celebrity is not the smartest thing to do," said Los Angeles-based family law attorney Peter Walzer. "Celebrity decisions are what you shouldn't do."
Walzer said a prenup or postnup is one of the most powerful documents an individual can enter into, controlling the entire financial realm of life, and he described the addition of lifestyle clauses as "polluting" the contracts.
"I really, really discourage it in a legal document," Walzer said. "It's like buying a house and putting into the house agreement that you have to take care of a plant or paint the house yellow. ... Work it out with a psychologist or marriage counselor."
Marvin vs. Marvin
Actor Lee Marvin was known for macho roles that took him from the sets of great Hollywood westerns to the theaters of the Second World War. Less well known is the role Marvin played in setting a key legal statute for relationships in which partners are not married. In a case that ended up before the California Supreme Court in the '70s, Marvin's girlfriend, Michelle Triola Marvin, with whom he had lived for years—she legally changed her last name to Marvin—sued after he left her and stopped making financial support payments to her, using the argument that their years together entitled her to a portion of the actor's assets, as in any divorce.
The California Supreme Court ruled that an earlier court decision to throw the case out was wrong, but Michelle Triola Marvin would ultimately lose her court battle, winning only a small settlement that ushered the term "palimony"—pal + alimony—into existence.
A judge ultimately rejected even the "palimony" she was awarded after a "tabloid" trial that included testimony from Hollywood fixtures, but the case established a precedent that is still in effect today across the U.S., allowing unmarried partners to sue for financial support based on an "implied" marriage contract.
Future Supreme Court Justice Ruth Bader Ginsburg, at that time a law professor, weighed in on the case, saying, "It illustrates the further breakdown of the legal line between married and unmarried union."
The case didn't sour Michelle Triola Marvin on leading men—she lived with actor Dick Van Dyke for many years afterward.
In Walzer's cynical view, these clauses do little more than provide a "powerless" person with the feeling that they got something in a relationship agreement worked out with a more powerful partner. And that's because courts will in most cases disregard these clauses, said New York City divorce attorney Robert Wallack. "They're used to set forth relationship expectations, not contractual obligations," Wallack said.
Walzer said there is also a risk that one unenforceable clause leads a judge to invalidate an entire contract. It's unlikely, but it's imperative that any relationship contract that includes lifestyle clauses explicitly states that in the event an isolated clause is deemed unenforceable, the broader contract is still in effect. The legal term for this is severability.
"Any good contract says that if there are parts that are deemed unenforceable, it will remain in effect in other parts of the contract," Carrozza said.
The legalese may be confusing, but Chicago family law mediator Michele Lowrance said the heart of the matter is understandable: Relationships are hard. She is seeing more prenups and said the contracts are bound to get even more creative and expensive. "Everyone is at such a loss when it comes to relationships, they are looking for any reason to make them sustainable," Lowrance said. "The more communication, the better, or there will be more trouble later."
However, the retired family court judge said there's a basic risk of putting anything into writing—it can come back to haunt you. Lifestyle clauses on their own may be unenforceable in court, but it's still written ammunition for an angry spouse—especially if there is a divorce proceeding.
—By Constance Gustke, special to CNBC.com