Around 15-20% of marriages experience some form of infidelity. (Yikes!) And it comes as no surprise that couples want to include infidelity clauses in their prenups. Celebs are especially known for throwing these clauses into the mix. But let’s get real: can cheating actually void a prenup? The short answer: it depends on what the contract says exactly and if it’s enforceable in your state! Unless an infidelity clause is specifically included, the prenup will usually stand strong, no matter what kind of drama goes down. But navigating the legal ins and outs of infidelity and prenups? Yeah, that can get just as messy as the infidelity itself. Let’s break it down!
Infidelity clauses—what are those?
Most prenups are all about the financials—who owns what, who owes what, and how everything will be split if things don’t work out. But some couples get a little more creative, adding lifestyle clauses that set expectations for certain behaviors. These cover everything from how often the couple has date nights to how many times the in-laws can come over for dinner. These clauses set out a code of conduct for the relationship and usually come with consequences if one partner breaks the agreement.
One of the most popular and notorious of these lifestyle clauses? The infidelity clause, or the “no-cheating” clause. These spicy provisions lay out what will happen if one partner steps out on the other. The consequences can range from big financial payouts to the faithful spouse to the loss of certain assets or even some other creatively designed penalties.
So… does cheating nullify a prenup?
Without an infidelity clause, the mere act of cheating will generally not nullify your prenup. However, prenups can be invalidated under other conditions, such as fraud, duress, coercion, or if they are found to be unconscionable or against public policy at the time of enforcement.
Regarding infidelity clauses: Depending on the language included in the prenup, a couple could theoretically condition the prenup upon staying faithful. For example, if the couple wanted to include language that said something along the lines of, “If one party cheats, then the prenup is void.” That is one possibility. Again, whether or not this is enforceable is unclear–it’s all dependent on your state laws and your specific situation.
Examples of infidelity clause language in real life
Let’s take a peek at some real-life examples that have made their way through the courts. Below, you can see real-life prenups that have included infidelity clauses and how the language looks. This can give you an idea of what infidelity clauses are like in real life.
Lloyd v. Niceta, 485 Md. 422 (Md., 2023): “If Husband is found by a preponderance of the evidence to have committed adultery… Husband shall make a tax-free transfer to Wife of SEVEN MILLION AND 00/100 DOLLARS ($7,000,000.00) within ninety (90) days of such findings.” In other words, this court upheld the infidelity clause in this postnuptial agreement.
Brennan v. Brennan, 955 S.W.2d 779 (Mo. Ct. App. 1997): “If [Husband] begins drinking alcoholic beverages without [Wife’s] permission or commits acts of infidelity during the first six years, then he will pay [Wife] $2,000 per month for her life or until she remarries… If [Wife] should commit acts of infidelity, she will leave the farm or other living facility (if the couple are living elsewhere) and provide for herself without seeking any monies or other assets from [Husband].”
Hall v. Hall, 2005 WL 2493382, at *2 (Va.App.,2005): “Upon [the husband] presenting proof that [the wife] has committed adultery, she agrees to relinquish her rights under this agreement. For the purposes of this agreement, proof of adultery is defined as; unaltered photographic or video representation of adultery; or, a finding of guilty of adultery in a court of law.”
Kennedy v. Dep’t of Revenue, TC-MD 111263C (Or. T.C. Oct. 18, 2012): “The Premarital Agreement also provided that suspicion of infidelity would subject the spouse so suspected to a polygraph test and, if found guilty of infidelity, the guilty spouse would pay the other a specified amount of money in the event of a divorce; Plaintiff was to pay $75,000 and [other spouse] $30,000.”
Are infidelity clauses enforceable?
Now this is where things get a little more complicated. The legal landscape of infidelity clauses is complex—will the clause hold up in court? Well, the answer depends a lot on where you live. Different states have different views on these clauses, so let’s break down what you need to know.
Examples of states where infidelity clauses are likely unenforceable
In certain states, infidelity clauses in a prenup are a no-go. Why? They say it goes against public policy, mainly for two reasons:
(1) No-fault marriage state: In no-fault states, you can file for divorce without having to assign blame, and courts typically don’t want to evaluate who did what. So, requiring them to determine fault due to cheating doesn’t really fit.
Examples:
- Hawaii: In Crofford v. Adachi (2022), the Supreme Court of Hawaii decided that an infidelity clause went against the state’s no-fault divorce principles. They ruled that because personal conduct isn’t relevant in splitting assets and because it would require judges to dig into fault, infidelity clauses are always unenforceable. Crofford v. Adachi, 506 P.3d 182, 190 (Haw. 2022).
- Nevada: In Parker v. Green (2018), a couple signed an agreement where the husband was to pay the wife monthly if the husband’s cheating ever broke them up. The court refused to enforce the cheating clause, noting that Nevada’s no-fault stance means courts shouldn’t have to dig into the reasons behind a divorce. Parker v. Green, No. 73176, at *2-3 (Nev. Jun. 25, 2018).
- California: The Diosdado v. Diosdado (2002) case set the precedent for no-fault divorce states. California ruled infidelity clauses in a marital agreement are void and unenforceable because they directly contravene the state’s no-fault policy, as courts aren’t supposed to consider fault during any divorce. Diosdado v. Diosdado, 97 Cal.App.4th 470, 496-97 (Cal.App. 2 Dist.,2002)
(2) Privacy concerns: Some courts also feel that it’s simply not their place to regulate private matters like infidelity, preferring to keep out of marital issues that are personal.
Example:
- Iowa: In the case, In re Marriage of Cooper, the Iowa Supreme Court refused to enforce an adultery provision in a postnuptial agreement and voided the entire agreement, citing privacy concerns. The court felt that addressing infidelity clauses would bring them too far into the couple’s personal lives and refused to “intrude on the intimacies of the marital relationship.” In re Marriage of Cooper, 769 N.W.2d 582, 586-87 (Iowa, 2009).
Examples of states where infidelity clauses may be enforceable
On the other hand, some states view these clauses as potentially enforceable, largely under the principle of freedom of contract. In these places, courts will often review each case to determine if the infidelity clause is fair and legally sound.
Let’s look at some of these:
- Maryland: In Lloyd v. Niceta (2023), Maryland’s courts backed the idea of infidelity clauses, supporting the concept of conditional asset transfers based on a spouse’s faithfulness. If the clause was agreed upon in good faith, the court is open to considering it. The court decided this case in the context of a postnup, so it’s unclear right now whether it would apply the same logic, but for now, this is what we have to work with! Lloyd v. Niceta, 485 Md. 422, 452-55 (Md., 2023).
- Florida: A Florida court upheld an infidelity clause in Weymouth v. Weymouth (2012), where the husband’s cheating led to a divorce. The court found the prenup’s provision precluding alimony unless there was infidelity was valid and enforceable. Weymouth v. Weymouth, 87 So.3d 30, 37 (Fla.App. 4 Dist.,2012)
- New Hampshire: In MacFarlane v. Rich (1989), the New Hampshire Supreme Court upheld a provision that would void the entire agreement if the husband left the wife for another woman, deciding that such an agreement was not against NH public policy. MacFarlane v. Rich, 132 N.H. 608, 613-14 (N.H.,1989).
Bottom line on whether cheating nullifies a prenup
At the end of the day, cheating doesn’t usually invalidate a prenup by itself. But if you have a prenup with an infidelity clause and live in a state that enforces infidelity clauses, like Maryland, then the clause might just come into play based on how the infidelity clause is crafted. If you’re considering adding an infidelity clause to a prenup, it’s a good idea to consult a legal expert in your state to make sure you’re covered. You can speak with HelloPrenup attorneys in your state for just $49 flat to understand if infidelity clauses make sense for you and in your state.
Jess Perillo is a legal intern at HelloPrenup, and is currently a third-year student at Suffolk University Law School. She is an Article Editor on Suffolk Law Review, and is especially interested in legal research and writing. Jess is passionate about exploring the ways technology can help close the justice gap and make legal services more accessible.
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