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Should You Get a Prenup With an Infidelity Clause?

July 15, 2014

DailyWorth Expert

We educate, empower and support women before, during and after divorce.

ThinkFinancially.com

So, Will an Infidelity Clause Keep Him From Cheating?
Maybe not, but it can’t hurt… and 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. “Most importantly, 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 alone can be beneficial, no matter whether the clause is ever actually used.”

Attorney Rickert has excellent advice about enforceability. “I always caution my clients that certain things may be unenforceable… as with all contracts, make sure there is a severability clause,” she concludes. “That way, in case that particular ‘lifestyle clause’ is unenforceable, it can be ‘severed’ and the rest of the contract is still enforceable.”

And as with many aspects of divorce, the rules vary from state to 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.” 

Even so, as a Divorce Financial Strategist™, I come down strongly in favor of prenuptial agreements. If you choose not to execute a prenuptial agreement, you’re effectively agreeing to the one that your state government already has in place for you and everyone else, through its divorce laws. If there are stipulations you’d like to make, it’s up to you and your spouse to talk them through, and lay out provisions you can both agree to uphold in a legal document. 

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. Bottom line: Your financial affairs should not suffer because of extramarital affairs.

Jeffrey Landers is a member of the DailyWorth Experts program. Read more about the program here.

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