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Can I Include a 'No-cheating' Clause in My Prenup?

By Steven Ellison, Esq. | Last updated on

Can you stop your spouse from cheating? No, but you may be able to make them pay up if they do.

Infidelity is responsible for as many as 40% of U.S. divorces. According to national surveys by the American Association of Marital Therapy, 15% of married women and 25% of married men have had extramarital affairs.

Hence the rise in premarital agreements, better known as prenups. While prenups traditionally focus on finances, more couples are using them to define other aspects of their relationship, from household responsibilities to marital intimacy.

They can also provide for what happens if a spouse cheats.

Prenuptial Agreements

A prenup is a written contract between two people before they are married. They typically identify the property and debts of the respective parties and provide for how they will be divided if the marriage ends, whether by death or divorce.

Prenups aren't just for the rich anymore. Even people with modest assets are getting prenups. According to the American Academy of Matrimonial Lawyers, 62% of the lawyers polled reported an increase in the number of clients seeking prenups in the past few years. One reason may be that Americans are marrying later in life and may have accumulated more property before marriage than their parents did.

Lifestyle Clauses

Prenups aren't limited to finances anymore. Parties now set out how they are supposed to behave during the marriage in what are called "lifestyle clauses." If you violate a lifestyle clause, a court might order you to pay a financial penalty — essentially, a fine — should your spouse choose to divorce you.

It seems that the sky's the limit on what some people will include in a lifestyle clause. Family law attorneys report all sorts of categories from the sublime to the ridiculous, including:

  • What religion the family will practice
  • How many children the couple will have
  • How many football games a spouse can watch on TV
  • Random drug testing for a spouse with a history of substance abuse
  • Spending limits for a spouse with a shopping or gambling problem
  • How often the in-laws can visit
  • How much weight a spouse can gain

Infidelity Clauses

An infidelity clause (also called a no-cheating clause) is a popular lifestyle clause that covers extramarital affairs. If the spouse cheats, then they can be ordered to pay a financial penalty if the marriage falls apart.

You see these occasionally in celebrities' prenups. For example, Jessica Biel will reportedly receive $500,000 if Justin Timberlake has an extramarital affair. Similarly, Catherine Zeta-Jones is reportedly entitled to a substantial payout if Mike Douglas sleeps around.

Tiger Woods in particular may regret his widely reported sex scandals. Although it's not clear whether he and his wife, Ellen Nordegren, had a prenup with an infidelity clause, his cheating led to a negotiated divorce settlement that, according to Esquire, was $80 million more than she would have otherwise been awarded.

Are Infidelity Clauses Enforceable?

Infidelity clauses don't fly everywhere. Several no-fault divorce states, such as California, Nevada, Iowa, and recently Hawaii, refuse to enforce infidelity clauses. The reason is that these clauses essentially punish someone for doing something wrong during the marriage, which is contrary to public policy in a no-fault divorce state.

However, a couple of states, notably Pennsylvania and Tennessee, will enforce a no-cheating clause. Unlike no-fault divorce states, these states specifically allow you to get a divorce on the ground of adultery.

So it depends on where you are. If you are thinking about including an infidelity clause in your prenup, make sure you check with an experienced family law attorney in your area.

Benefits and Disadvantages of Infidelity Clauses?

As with anything, there are upsides and downsides to having an infidelity clause in your prenup. One upside is financial. If your spouse cheats, you could get more money in your divorce. Even if an infidelity clause is not legally enforceable, a cheating spouse may be willing to pay more in a settlement to keep the affair from becoming public.

Another upside is ethical and moral. Having an infidelity clause in your prenup might deter a potential cheater from having an affair.

However, there are downsides. Merely asking for an infidelity clause can cause offense, especially if there is no prior history of cheating. They can also breed distrust before the marriage even starts. And some courts will throw out the entire prenup if you have too many lifestyle clauses in them. So if you do want an infidelity clause, you need to be careful.

Do I Want an Infidelity Clause in My Prenup?

You and your future spouse should discuss your expectations of each other before your wedding. But your prenup probably isn't the place for it, especially since some courts won't enforce lifestyle clauses anyway. If you feel you need to get it in writing from your future spouse, though, you may be better off putting your marital expectations in a separate document.

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