An infidelity clause in your prenuptial agreement can be a vital tool for safeguarding your financial future in the event of a divorce resulting from unfaithfulness.
Such a prenup lays out each spouse's property rights and expectations in the case of divorce. It can delineate which assets are deemed separate or marital property, how to split marital assets, and even address estate planning, inheritances, and alimony terms.
These agreements often include stipulations that go beyond asset division. You might find it essential to incorporate an infidelity clause before tying the knot.
Understanding Lifestyle Clauses
Prenuptial agreements have evolved; they're no longer limited to financial matters. Many couples now add “lifestyle clauses” to clearly outline expectations and behavior standards in their marriage.
Couples might use lifestyle clauses to set various guidelines, such as acceptable weight gain over the years or the frequency of in-law visits. Some even address sexual expectations. While some provisions may seem reasonable, the partner who fails to comply may face financial repercussions.
One of the most fundamental expectations in a marriage is fidelity. The “infidelity clause” is emerging as a popular addition to prenuptial agreements, aiming to impose financial penalties on a partner who strays. Such clauses are quickly gaining traction in both prenuptial and postnuptial agreements.
Advantages of Including a Cheating Clause
Incorporating an infidelity clause can empower couples to define their own rules, potentially overriding state divorce laws.
“Many states, including New Jersey, have moved away from considering ‘fault’ like adultery when determining alimony and asset division,” explains matrimonial attorney Bari Z. Weinberger. “Adultery can still serve as a reason for divorce, but financial penalties for unfaithfulness are rare unless marital funds were misused. Courts may order reimbursement for that spending but typically won't adjust alimony or asset distribution based solely on infidelity.”
Defining Cheating
One challenge with infidelity clauses is establishing a clear definition of cheating. Some might argue that physical intimacy isn't the only indicator of adultery, complicating the boundary between flirting and cheating. What about sexting? How do you prove infidelity occurred? If your prenup demands proof of unfaithfulness, what constitutes legal evidence?
Interestingly, the mere presence of an infidelity clause can deter a cheating partner from contesting it, as they may wish to avoid exposing their actions in court.
“In my experience, most individuals shy away from contesting this clause,” says Los Angeles attorney Kelly Chang Rickert. “If a prenup states that cheaters owe a certain amount, it’s unlikely the unfaithful partner will dispute it. This is especially true in high-profile cases where privacy is paramount, and many people feel morally obliged to honor agreements they've signed.”
Can an Infidelity Clause Prevent Cheating?
While it may not guarantee fidelity, discussing a prenup can foster better communication within a relationship.
“I advise clients that while infidelity clauses may lack enforceability, they can act as a deterrent for those contemplating unfaithfulness,” states Philadelphia divorce attorney Jennifer A. Brandt. “The conversation surrounding a prenup compels couples to address their expectations regarding fidelity and behavior. Even proposing such a clause encourages discussions about relationship dynamics and mutual respect, which can be beneficial regardless of whether the clause is ever enforced.”
State laws vary widely.
“In California, for instance, lifestyle clauses are generally unenforceable,” attorney Rickert notes. “This means that if a prenup is disputed during a divorce, the challenging spouse will use this as a reason for non-enforcement.”
If you choose not to create a prenuptial agreement, you automatically adhere to your state's default stipulations. Having open discussions with your partner can help you outline any specific terms you'd like to include.
If an infidelity clause could provide extra financial security in a potential divorce, it may be worth considering for your prenup. Your financial future shouldn't be compromised due to infidelity.
