Can you make your spouse literally pay for cheating? Yep, some states allow a prenup clause for that.
Known as an infidelity clause or a “no-cheating” clause, this portion of your prenuptial agreement details the repercussions of your marriage ending due to an extra-marital affair.
So, how do infidelity clauses work, and to what extent are they enforceable in some states?
Here’s what you should know.
What’s an Infidelity Clause?
Simply put, an infidelity clause is a part of your prenup detailing how much money one spouse will pay the other if they cheat. It falls under the umbrella of “lifestyle clauses” covering the behavioral aspects of your marriage.
BEFORE getting married, what conversations about MONEY should you have with your partner?
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Get the guideWhy Include an Infidelity Clause?
It’s not hard to see why an infidelity clause may be appealing — it can essentially disincentivize your spouse from having an affair.
With roughly 20-40% of marriages ending due to infidelity, some see the no-cheating clause as a means to prevent sketchy behavior. Some may think twice about cheating if it means being slapped with a hefty fine.
Prenups & Lifestyle Clauses
A prenuptial agreement is a legal document you and your partner sign before marriage. It typically includes practical details on dividing assets, property, and debts should the marriage end due to divorce or death.
Beyond this, prenups in some states can also cover lifestyle-specific clauses. Lifestyle clauses may range from tame to novel and can cover topics like:
- Guidelines for social media use
- How to raise children, and what activities, religions, and diets they follow
- Requirements on how often to engage in social activities together
- Stipulations on how much weight a person can gain in the marriage (yikes)
- Who prepares which meals each week
- And yes, how much money a cheating spouse pays to the other if they have an affair
Clauses cover various topics, and as long as both parties agree to the conditions of the clause (and if their state legally recognizes them), then it’s considered valid.
Are Infidelity Clauses Enforced Everywhere?
However, most importantly, not all states recognize infidelity clauses.
For example, in California (a no-fault divorce state), even if a spouse cheats, a judge can’t use this information to determine how they’ll divide the marital assets. Because infidelity clauses are counterintuitive to this legal process, California courts will not accept them. In fact, having an infidelity clause in your CA prenup could invalidate the entire agreement.
Most no-fault divorce states, including California, Nevada, Iowa, and Hawaii, will not enforce an infidelity clause. On the other hand, states allowing for divorce based on adultery – including Pennsylvania and Tennessee – may honor infidelity clauses in divorce cases.
Consult with a family law attorney while creating your prenuptial agreement to determine whether an infidelity clause is enforceable, and how the laws of your state will influence the validity of an infidelity clause.
Infidelity Clauses: Proceed with Caution
Should you include an infidelity clause in your prenup? That’s between you and your spouse-to-be — but here is my warning.
Some courts will invalidate your prenup if it includes excessive lifestyle clauses, or if an infidelity clause is included or misused. If you’re dead set on having this clause, confer with a family lawyer to confirm you’re approaching it to the highest legal standard.
Prenuptial agreements help build trust in your relationship by inspiring conversations about finances and life goals. If you’re looking for an infidelity clause to instill trust, then deeper issues are at play. You and your partner need to talk through why you are considering one in the first place.
In summary, don’t use an infidelity clause as a crutch; seriously, don’t use it.
Book a consultation call to discuss incorporating lifestyle clauses that empower your relationship. I aim to help couples build prenups based on love — not fear.