Q: This question comes from Michelle. She writes: I consulted an attorney about creating a prenuptial agreement. My lawyer mentioned he has never included an infidelity clause in any prenup he has worked on. What’s the purpose of an infidelity clause, and what advantages does it provide?
A: Nowadays, prenuptial agreements are seen as practical financial tools rather than outdated or offensive documents. Kudos to you, Michelle, for recognizing their value.
A standard prenup typically outlines the property rights of each spouse should the marriage end. However, some agreements go beyond that, incorporating provisions referred to as “lifestyle clauses.” The infidelity clause you mentioned is one such example.
This clause stipulates that if your spouse engages in infidelity, they could face financial penalties upon divorce, which acts as a form of protection for you. Additionally, infidelity clauses can clarify relationship expectations.
As Philadelphia divorce attorney Jennifer Brandt noted, “An infidelity clause not only conveys the requesting partner’s views on cheating but also encourages couples to communicate their relationship goals, treatment of each other, and feelings. This dialogue can be valuable, regardless of whether the clause is ever enforced.”
However, there are a few important considerations regarding infidelity clauses. First, they may not be enforceable in all states. Another concern is the challenge of defining or proving infidelity. Nevertheless, if infidelity is proven, experts suggest that such a clause can often be effective, as a cheating spouse may prefer to avoid public scrutiny in court and therefore choose not to contest it.
