A basic prenuptial agreement establishes each spouse’s property rights and expectations in case of divorce. For example, it can specify what assets will be considered separate or marital property. It could also outline how marital property should be divided. Some include considerations regarding estate planning and inheritances. Others mention how much alimony will be paid and for how long.
These prenups contain provisions that extend well beyond clarifying what’s yours and what’s mine. You might want a prenup infidelity clause before you say “I do.”
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Prenups aren’t just about money and assets any more. For better or worse, some couples are now including “lifestyle clauses” in these legal agreements. It’s a way to establish expectations and guidelines for behavior within the marriage.
Couples use lifestyle clauses to cover many different things. These can include how much weight they’re each allowed to gain in the years ahead. Some might include how often the in-laws are allowed to visit or even how often they expect to have sex. Some provisions make more sense than others. In general, the spouse who doesn’t hold up their end of the deal could face financial consequences.
Of course, one of the greatest expectations we have in entering a marriage is that our partner will be faithful. The “infidelity clause” — an up-and-coming trend in prenuptial agreements — seeks to ensure that there are financial consequences for the cheater if that vow is broken. Infidelity clauses are quickly becoming the most popular lifestyle clauses in pre- and postnuptial agreements.
Why a Cheating Clause Might Be Good
There can be good reason to include an infidelity clause in your agreement. It offers you a way to, as a couple, set your own rules, perhaps even superseding your state’s divorce laws.
“Many states, including New Jersey, where I practice, have eliminated ‘fault,’ such as adultery, as a factor in determining alimony and asset distribution,” matrimonial and family law attorney Bari Z. Weinberger says. “Adultery can still be listed as a ground (reason) why the divorce was filed. But most states typically will not monetarily sanction a spouse who has been unfaithful unless the unfaithful spouse spent marital money on a lover. In [this] case, the court could order reimbursement of a portion of that marital money to the spouse who has been wronged. However, a judge giving one spouse more in alimony or a larger chunk of a retirement asset just because the other spouse cheated is generally not a realistic expectation.”
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What is Cheating, Anyway?
One difficulty with infidelity clauses in prenuptial agreements is the potential to run into trouble defining infidelity. You might say that you don’t have to have intercourse to have an intimate experience outside your marriage that constitutes adultery. But where do you draw the line between flirting and adultery? Does sexting count? Is there any physical contact that would not constitute cheating? Another difficulty is proving that cheating happened. If your prenup requires you to prove that your partner has been unfaithful, what legal proof is there?
An infidelity clause can sometimes be effective simply because a cheating partner may not want proof of their affair to be aired in a public courtroom and therefore, won’t challenge it.
“In my experience, most people are unwilling to raise this defense,” Los Angeles attorney Kelly Chang Rickert explains. “For example, if you have a clause in your prenup that says cheaters must pay a certain amount, the cheater is probably not going to challenge this. This is especially true in high-profile divorces where hush-hush is the norm. Also, most people (for moral and ethical reasons) are pretty unwilling to challenge something they already signed.”
Will an Infidelity Clause Keep Your Partner From Cheating?
Maybe not, but it can’t hurt. Working through the conversation you’ll have about your prenup can be good for your relationship.
“My advice to clients is generally that (infidelity clauses) may not be enforceable, but that they can provide a deterrent for a spouse who would otherwise be unfaithful,” Philadelphia divorce attorney Jennifer A. Brandt says. “Like the financial aspects of a prenuptial and postnuptial agreement, the idea of an infidelity clause forces parties to discuss this issue and their expectations regarding the behavior of the other party. With an infidelity clause, not only does the person requesting the clause make their feelings clear about possible infidelity, the proposal of this clause alone can force couples to communicate about what they want out of their relationship, how they will treat each other and how they will communicate their feelings. This exercise can be beneficial, no matter whether the clause is ever actually used.”
The rules, of course, vary by state.
“Lifestyle clauses are generally held to be unenforceable in California,” attorney Rickert points out. “This means in a divorce, when a prenup is presented, the spouse challenging the prenup will raise it as a defense as to why it should not be enforced.”
When you don’t execute a prenuptial agreement, you’re effectively agreeing to the one that your state government already has in place. If there are stipulations you’d like to make, it’s up to you and your spouse to talk them through.
If an infidelity clause will add protections to your financial future in the event of a divorce, then it may be worth your while to include one in your prenup. Your financial affairs should not suffer because of extramarital affairs.
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