Should You Get a Prenup With an Infidelity Clause?

July 15, 2014

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

Prenuptial agreements have come a long way since the days when wealthy parents would require them to prevent a son or daughter’s misguided marriage from gutting the family fortune. These days, prenups aren’t considered stuffy or offensive — instead, they’re widely recognized as practical, forward-thinking financial management tools. 

A basic prenup establishes each spouse’s property rights and expectations in the event of divorce. For example, it can specify what assets will be considered separate or marital property, how marital property should be divided, any special considerations regarding estate planning and inheritances, and how much alimony will be paid and for how long. 

I advise every bride I work with to have a well-executed prenuptial agreement to safeguard her financial independence. But today, some take it even further. Their prenups contain provisions that extend well beyond clarifying what’s yours and what’s mine.

Lifestyle Clauses
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 as a way to establish expectations and guidelines for behavior within the marriage. 

Couples use lifestyle clauses to cover everything from how much weight they’re each allowed to gain in the years ahead to how often the in-laws are allowed to visit to how often they expect to have sex. Some provisions make more sense than others, but the idea in each case is that if the expectations are not met, there will be financial consequences for the spouse who fails to hold up her or his end of the deal. 

Of course, one of the greatest expectations we have in entering a marriage is that our partner will be faithful, and now 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.

Celebrities Paving the Way
Celebrity marriages can be comparable to mergers of multi-million dollar enterprises — which is why, in Hollywood, prenuptial agreements are the rule, rather than the exception. It probably comes as no surprise that more and more celebrity couples are including infidelity clauses in their prenups, and although I’m not privy to the legal details, some elements have been covered in the popular press.

For instance, Denise Richards’s deal is said to have included $4 million if she could prove that Charlie Sheen had been unfaithful. And if her marriage to Michael Douglas ends because of infidelity on his part, Catherine Zeta-Jones is reportedly guaranteed a $5 million bonus in addition to the other terms of her prenup. However, Jessica Biel would get only $500,000 if Justin Timberlake were to cheat on her.

In a twist on the theme, Nicole Kidman is said to have a prenuptial agreement with Keith Urban that, if they divorce, gives him $640,000 for every year of their marriage…unless he ever again uses illegal drugs, in which case he forfeits every penny. 

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