The Infamous Infidelity Clause

As the New York Times reports, a jarring 15% of married women and 25% of married men have had extramarital affairs in the United States. This essentially means that 1 in 4 married men cheat in America. Wow. And this is reflected in the divorce statistics– the American Psychological Association reports that infidelity is responsible for between 20-40% of all divorces!

But what is there to do about it? (If anything at all). Well, from a psychological standpoint, there are plenty of ways to foster a stronger relationship in hopes of preventing cheating. However, sometimes, it’s unavoidable. And always remember, it’s not the person who is cheated on’s fault! Ever!

From a legal perspective, there is something known as an “infidelity clause” that you can put in a prenup, which requires payment from the cheater to the cheated-on if they cheat. However, these types of clauses aren’t always enforceable. Let’s discuss all things infidelity clause, so keep reading to understand more!

Understanding cheating clauses. Yes, they are a thing (in some states).

Yes, in some states, prenups can contain provisions referred to as “cheating” clauses, which can entitle one spouse to financial gain in the case that their partner commits infidelity.

• Are these clauses legit?: Only in certain states. For example, in California, it’s a no-go. Infidelity clauses will not be upheld.
• How do they work?: Typically, no-cheating clauses say, “If one spouse cheats, then they have to pay the other spouse $X.” Then, during the divorce, the cheated-on spouse would likely have to bring some amount of evidence to the court to prove there was, in fact, infidelity.
• What is considered “infidelity?”: This is usually considered sexual intercourse, but each couple may define what this looks like (within reason) in the prenup itself. For example, you can define infidelity as voluntary sexual intercourse between one of the spouses and someone other than one of the spouses.
• Example: Mark and Melissa have an infidelity clause in their prenup that says if one person cheats, then the cheater has to pay the other spouse $100,000 in a lump sum. If they divorce in a state that enforces infidelity clauses, and one party can prove that there was, in fact, infidelity, then Mark may be required to pay the $100k, in addition to any alimony, child support, and any other asset division.
• Important caveat: It is crucial to understand that infidelity clauses are oftentimes not enforceable in many different states. This means that if you have a no-cheating clause in your prenup in a state where it’s not enforceable, you won’t be able to ask a court to enforce it. Even worse, a court could throw the whole prenup out if the court found the agreement to be unconscionable.

Takeaway: No-cheating clauses are only enforceable in certain states. They provide financial gain to the party who was cheated on by requiring the cheater to pay a set amount of money (you choose how much).

Other clauses similar to no-cheating clauses

No-cheating clauses fall under the umbrella of “lifestyle clauses,” which pertain to the behavior of a spouse in a marriage. These sorts of clauses probably constitute some of the more outlandish and bizarre celebrity prenups that you’ve heard of. Here are some more examples of other lifestyle clauses besides infidelity clauses:

• No drinking/drugs clause: The Undoing star Nicole Kidman and country music sensation Keith Urban’s prenup. While provisions in their contract entitle Urban to a $640,000 annual payout from Kidman, recovered cocaine addict Urban will lose his claim to these earnings if he begins using again.
• Weight gain clause: As an example, actress Jessica Simpson and her almost-husband, Dallas Cowboys quarterback Tony Romo, stated in their prenup that Simpson was not allowed to weigh more than 135 pounds throughout the course of the marriage. If her weight did go above 135 pounds, she would owe Romo $500,000 for every pound above 135 lbs that she gained.
• Sex clauses: Requiring intercourse a certain number of times per week has been rumored to be in some celebrity prenups. Yikes! It is rumored that J.Lo has previously requested sex 4x per week in her prenup with Ben Affleck.
• In-law clauses: Requiring (or avoiding) a certain number of visits from in-laws per week/month/year, etc. For example, “in-laws may only visit the marital residence one Sunday per month.”
• Important note: Again, just like no-cheating clauses, most lifestyle clauses are not enforceable. I mean, how are you going to have a court enforce the in-laws not coming over? It’s ludicrous!

The bottom line: Lifestyle clauses tend to make appearances in celebrity prenups, but they’re not real-life clauses that everyday folks typically put in their prenups. In fact, many attorneys will downright refuse to put outrageous clauses such as the above in a prenup. Plus, your relationship is likely already doomed if you have a weight clause.

Why are infidelity clauses hard to enforce?

Think of it this way: courts typically don’t want to go meddling with the “he said, she said” of proving cheating. It’s oftentimes hard to prove anyway, and it takes up the court’s time.

Trying to prove your husband slept with his secretary to get a lump sum payment isn’t necessarily the best use of their already limited resources.

In addition, there aren’t many cases that have dealt with this issue because either the spouses didn’t want to take it all the way up through the court process, or they settled before they got that far.

The limited case law that exists on this topic makes it hard for attorneys to agree to put these types of clauses in.

If infidelity clauses are hard to enforce, why do people still get them?

As you read this article and discover that infidelity clauses might not hold up in certain states, you might be curious: why do so many celebrities (and regular Joes) include them in their prenuptial agreements?

Well, for starters, adding an infidelity clause can be a tool for communicating with your future spouse and setting boundaries, even knowing that it’s potentially not enforceable.

However, it’s important to note that many attorneys will actually refuse to put an infidelity clause in a prenup because it could put the entire prenup at risk.

The bottom line? Infidelity clauses can be a good boundary-setting tool with your future spouse. However, it may not be enforced. And in certain states, it could put your entire prenup at risk.

Prenups are undoubtedly a practical, forward-thinking tool for financial management

It has been proven that couples who discuss finances more often are happier and benefit from more satisfying marriages. Likewise, couples who institute cheating clauses must facilitate discussions surrounding infidelity head-on, which means they will talk about expectations in the marriage and their feelings in a way that is straightforward and honest. However, tread lightly because many states will NOT enforce an infidelity clause. HelloPrenup offers an infidelity clause option in select states!

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.

Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].

All content provided on this website or blog is for informational purposes only on an “AS-IS” basis without warranty of any kind. HelloPrenup, Inc. (“HelloPrenup”) makes no representations or warranties as to the accuracy or completeness of any information on this website or blog or otherwise. HelloPrenup will not be liable for any errors or omissions in this information nor any use of, reliance on, or availability of the website, blog or this information. These terms and conditions of use are subject to change at any time by HelloPrenup and without notice. HelloPrenup provides a platform for contract related self-help for informational purposes only, subject to these disclaimers. The information provided by HelloPrenup along with the content on our website related to legal matters, financial matters, and mental health matters (“Information”) is provided for your private use and consideration and does not constitute financial, medical, or legal advice. We do not review any information you (or others) provide us for financial, medical, or legal accuracy or sufficiency, draw legal, medical, or financial conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need financial, medical, or legal advice for a specific problem or issue, you should consult with a licensed attorney, healthcare provider, or financial expert. Neither HelloPrenup nor any information provided by HelloPrenup is a substitute for financial, medical, or legal advice from a qualified attorney, doctor, or financial expert licensed to practice in an appropriate jurisdiction.