Prenuptial agreements (a.k.a., prenups) are a modern day way to show mutual respect and love to your partner. It sets up couples for success in a marriage by setting expectations with one another, facilitating in-depth communication, and laying a strong foundation for marital bliss. One particularly tense subject may arise while getting a prenup, and that is infidelity. Some couples may have heard about the infamous “infidelity clause” which requires the cheating spouse to pay the other spouse if they have an affair. Somewhere along the way, the misconception that cheating voids a prenup arose… and we’re here to tell you that’s not necessarily true, but we can explain why and how this misconception developed. Let’s dive in!
What is a prenup and how do you void one?
First… what is a prenup? Prenuptial agreements, commonly known as “prenups,” serve as a contract between a future husband and wife outlining how assets and debt should be divided in the event of a divorce. Prenups may also cover other topics such as insurance, confidentiality, pets, social media, and in some states, infidelity.
The legal validity of a prenup depends on various factors such as full disclosure, absence of coercion, and compliance with state laws. For example, if you and your partner don’t follow the state formality requirements of a prenup, such as signatures, notarization, and/or witnesses (depending on your state), your prenup may be deemed void and unenforceable.
There are several ways a prenup can be found void and unenforceable (depending on your state laws) including but not limited to:
- Lack of proper financial disclosure
- Duress/coercion (lack of voluntary signature)
- Lack of proper state formalities (signatures, witnesses, notarization, etc.)
- Terms included are against public policy or state/federal law
What is an infidelity clause?
The infamous infidelity clause is something you hear about in the media and in the movies. It is a big draw to celebrity couples and couples of high net worth. But regular people also have interest in them for obvious reasons. An infidelity clause says neither person can cheat on the other, and if they do, the cheater must pay their spouse a lump sum of money. During prenup negotiations, the couple can determine how much that lump sum of money should be. For example, Justin Timberlake and Jessica Biel allegedly have a prenup stating Justin will have to pay Jessica $500,000 should he engage in extramarital affairs.
However, the enforceability of an infidelity clause is up for debate and also depends on which state you are in. For example, many California lawyers agree that it is not an enforceable clause. In fact, many lawyers will actually refuse to include such a clause because of it’s unlikelihood to be enforced. On the other hand, there are prenup lawyers out there who are willing to include the clause even though they understand it has a chance of being thrown out should it ever be challenged down the road. (This is why you always hear of celebrities including this type of clause). Some attorneys also say that even though the clause may not be enforceable, it still has an effect on the behavior in the relationship.
Can cheating void a prenup?
Alright, let’s tackle the pressing question—does cheating have the power to void a prenup? The simple answer is no. Cheating doesn’t fall under the legal criteria that can render a prenup invalid and/or unenforceable. This misconception likely stems from a few different things: infidelity clauses, media stories, and fault-based divorces. Let’s dive into each of these reasons below.
Misconception #1: Infidelity clauses
One misconception may lie within the existence of infidelity clauses, which can impose financial consequences on cheating spouses. While cheating itself doesn’t invalidate the prenup, an infidelity clause can indirectly impact the divorce outcome. Without the cheating, one might not be obligated to pay their spouse anything. However, with the clause, a lump sum payment becomes mandatory, giving rise to the misconception that cheating automatically “voids” a prenup.
You may be wondering, well, what if the infidelity clause isn’t enforceable in the state? And, to that we say, excellent question! The reason an infidelity clause may have an effect on the divorce outcome, regardless of whether or not it is enforceable in the relevant state, is because it can potentially (not always) create leverage in some scenarios and states. Why? Because many cheating sposues don’t want to go down the route of challenging the validity of an infidelity clause in a prenup (expensive, time-consuming, stressful), so instead, they negotiate. Both sides know there are risks and so they can likely come to terms. Warning: in many states, such as California, using infidelity clauses as leverage may not work due to the clear-cut unenforceability of infidelity clauses.
Misconception #2: Media stories
While cheating doesn’t, per se, void a prenup, let’s use an example to show why media stories may lead some people think it does. Tiger Woods and his ex-wife Elin Nordegren are a perfect example. We all know of Tiger’s sex scandals and infidelity– it was an extremely publicized affair back in the early to mid 2000s. And his cheating played a huge role in how much he was required to pay his ex in the divorce settlement. Here’s how. Tiger and Elin had signed a prenup prior to marriage. It is unclear as to whether or not they had an infidelity clause, but either way, Elin was able to negotiate and gain leverage in the settlement because of Tiger’s cheating. This led her to receive an extra $80 million more than she would have sans cheating.
Misconception #3: Fault-based divorces
Another reason people may be confused into thinking that cheating voids a prenup is from the notion of fault-based divorce. Fault-based divorce is a type of divorce you can file in only some states. One of the grounds for fault-based divorce is adultery. Many states today have abolished this type of divorce and have moved to the more modern way of getting a divorce under the grounds of “irreconilible differences.” Nonetheless, fault-based divorce persists and allows for one spouse to argue the misconduct of the other spouse as the reason for divorce, i.e., adultery. If adultery can be shown in a state that allows fault-based divorce, the court may award the spouse who got cheated on more money in the divorce settlement because of the cheating. Hence, the reason people may be confused and think that cheating voids a prenup when they are actually just thinking about fault-based divorces.
Seek legal advice
When in doubt, ask a lawyer in your state about this topic if it’s a concern for you. Whether you are thinking of getting a prenup or already have one and cheating is a concern, it’s best to seek out legal advice for the most accurate information possible. An attorney can help answer your questions, especially surrounding the enforceability of infidelity clauses and how cheating can affect your marriage, prenup, and potential divorce settlement. Through HelloPrenup’s platform, you can ask a vetted attorney in your state about cheating, prenups, infidelity clauses, and much more.
We can’t address cheating without addressing the profound emotional consequence it has on a person and a marriage. Cheating can be devastating for all parties involved–both spouses, the children, and even close family and friends. If you or your partner have cheated or are considering cheating, you may want to reach out to a therapist or couple’s therapist to get the help you all will likely need.
The bottom line
The bottom line is that cheating does not void a prenup. However, it may have an impact on negotiations, especially if an infidelity clause is involved. Be warned though, the validity and enforceability of infidelity clauses varies from state to state. So, if you hear on the news or on social media that someone’s prenup was “voided” because of cheating, it may not be so straightforward. And keep in mind that what is true for one couple may not be true for your situation based on state laws and specific circumstances.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]