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.

Prenups for the Rest of Us
Infidelity clauses in prenuptial agreements aren’t only for the super-wealthy. There can be good reason to include one in your agreement (even if the paparazzi don’t follow your every move). Why? Because an infidelity clause in a prenuptial agreement offers you a way to, as a couple, set your own rules, perhaps even superseding your state’s divorce laws.

“Many states, including New Jersey, where I practice, have eliminated ‘fault,’ such as adultery, as a factor in determining alimony and asset distribution,” matrimonial and family law attorney Bari Z. Weinberger told me. “Adultery can still be listed as a ground (reason) why the divorce was filed, but most states typically will not monetarily sanction a spouse who has been unfaithful, unless the unfaithful spouse spent marital money on a lover, in which case the court could order reimbursement of a portion of that marital money to the spouse who has been wronged. However, a judge giving one spouse more in alimony or a larger chunk of a retirement asset just because the other spouse cheated is generally not a realistic expectation.” 

What is Cheating, Anyway? And How Do You Prove It?
One difficulty with infidelity clauses in prenuptial agreements is the potential to run into trouble defining infidelity. Most people might agree that you don’t have to have intercourse to have an intimate experience outside your marriage that constitutes adultery. But where do you draw the line between flirting and adultery? Does sexting count? Is there any physical contact that would not constitute cheating? Another difficulty is in proving that cheating happened. If your prenup requires you to prove that your husband's been unfaithful, what legal standard of proof must you meet — a preponderance of credible evidence? A moral certainty? A reasonable doubt?

The good news is that an infidelity clause can sometimes be effective simply because a cheating husband may not want proof of his affair to be aired in a public courtroom and therefore, won’t challenge the prenup. “In my experience, most people are unwilling to raise this defense,” Los Angeles attorney and legal analyst Kelly Chang Rickert explains. “For example, if you have a clause in your prenup that says cheaters must pay a certain amount, the cheater is probably not going to challenge this. This is especially true in high-profile divorces where hush-hush is the norm. Also, most people (for moral and ethical reasons) are pretty unwilling to challenge something they already signed.”