Infidelity clauses (a.k.a., no-cheating clauses) stir up a lot of discussion in the prenup world, and this is unsurprising given their frequent portrayal in the media and in Hollywood, where the rich and famous are seen incorporating costly “no-cheating” clauses into their prenups. The question of “Will an infidelity clause hold up in court” is decided on a state-by-state and case-by-case basis. Every state has its own rules on prenups and what can go in them. For instance, an infidelity clause may not be enforceable in California but may be enforceable in Maryland.
In this article, we’re going to discuss various states’ treatment of infidelity clauses in prenups (and some in postnuptial agreements, or “postnups,” too). Without further ado, let’s get into all things infidelity clauses.
The legal precedent in various states
It’s crucial to note that not all states have case law addressing the specific matter of infidelity clauses in prenuptial agreements. This is why the enforceability of such clauses is so unclear. Furthermore, because of the limited case law on this subject, it is necessary to look at some adjacent cases–those of infidelity clauses in postnups. Prenups and postnups are similar in that they are both marital agreements, but there are some differences, too, such as when they are executed and why they are executed. (See more on the differences between prenups and postnups here). With that said, below, you can see how different state courts treat infidelity clauses in both prenups and postnups.
California – 2002 – Declined to uphold an infidelity clause in postnup
In the Diosdado v. Diosdado case, the couple had a contract that imposed a $50,000 penalty if either spouse engaged in infidelity. However, the judges in this particular case threw out the agreement, citing a violation of California’s foundational principle of no-fault divorce. It was emphasized that executing a marital agreement cannot circumvent California’s no-fault system. The judges specifically referred to Cal. Fam. Code. § 2335, which explicitly prohibits the introduction of evidence related to marital misconduct in divorce proceedings. In simpler terms, blame or fault does not influence a judge’s decision in divorce matters in California.
Iowa – 2009 – Declined to uphold infidelity clause in postnup
In the case of In re Marriage of Cooper, the couple crafted a postnup agreement after the wife discovered the husband’s affair. Their postnup said that if the marriage ended based on the husband’s infidelity, he would be financially responsible. It proceeded to list out the things he would pay for in that case. Shortly after the couple signed it, he left their marital home and resumed his affair.
The result? The Iowa Supreme Court deemed this postnup in violation of the state’s public policy. The Court reasoned that contracts attempting to regulate spousal conduct during marriage are typically unenforceable. The Court’s rationale aimed to prevent spouses from circumventing no-fault divorce laws through private agreements and to avoid introducing elements like sexual fidelity or relationship harmony as bargaining tools.
Florida – 2012 – Upheld infidelity clause in prenup
The couple in this case (Weymouth v. Weymouth) had a prenup outlining several financial terms, including a waiver of alimony. The alimony waiver specified that the parties “specifically waive any claims against the other for alimony.” However, it included an exception, stating that in the event of adultery, physical abuse, or mental or emotional abuse, either party could seek alimony and support from the other, pursuant to Florida law. The court ultimately upheld the clause and permitted the state law to apply to alimony (essentially throwing out the alimony waiver in the prenup because of the proven adultery).
Nevada – 2018 – Declined to uphold infidelity clause in pre-domestic partnership agreement
In the case of Parker v. Green, the Nevada Supreme Court dealt with a pre-domestic partnership agreement stipulating that “Bryan would provide Mary with $2,500 per month until death or remarriage if the parties permanently ended their relationship due to Bryan’s infidelity or dishonesty.” The Court interpreted this clause to refer to alimony payments and declined to uphold it. It explained that “just as infidelity is not a suitable consideration for divorce, it is also inappropriate to consider it when determining an alimony award.”
Hawaii – 2022 – Declined to uphold an infidelity clause in postnup
In Crofford v. Adachi, the couple in that case faced marital issues, including Husband’s extramarital affairs. Wife was well off financially, while Husband had very little money and only debt. In 2013, after Wife found Husband in bed with another woman on their yacht, Wife considered divorce. Husband proposed a postnup. The agreement basically said if he cheats again, he will get nothing from the divorce. Both signed it in June 2013. They separated a few months later due to Husband’s aggression. Their divorce triggered a dispute over the postnup’s enforceability.
The below lays out a few of the Supreme Court of Hawaii’s key reasonings for not enforcing the infidelity clause
- No-Fault Divorce Policy. The Court explained that Hawaii follows a no-fault approach to divorce, which means it does not consider marital misconduct or fault when dividing property.
- Public Policy Concerns. The Court expressed concerns about the public policy implications of enforcing agreements that involve fault considerations (i.e., examining adultery in cases). It argued that allowing such agreements would lead to acrimonious divorce proceedings, potentially encouraging spouses to prepare for divorce by keeping track of each other’s actions.
- Comparison with Other Jurisdictions. The Court cited cases from other states, including California, Iowa, and Nevada, where similar agreements were deemed unenforceable due to their conflict with no-fault divorce policies. (In other words, Hawaii looked at what other similar states have done and followed suit).
Maryland – 2023 – Upheld an infidelity clause in postnup
In a recent Maryland case (Lloyd v. Niceta) involving the grandson of philanthropist Rachel “Bunny” Mellon and the former social secretary for Melania Trump, the state demonstrated its openness to enforcing infidelity clauses.
The husband (who came from family wealth) engaged in infidelity throughout his marriage. In response, his wife agreed only to stay married if he signed a postnuptial agreement, imposing a $5 million penalty for any future infidelity. Against legal advice, the husband not only agreed but suggested an even higher penalty of $7 million.
Several years later, the husband breached the agreement by cheating again, triggering a dispute over the payment of the infidelity penalty fee of $7 million. The result? The court sided with the wife and enforced the infidelity clause requiring payment of $7 million.
What about states that haven’t addressed the topic?
The above case law underscores the absence of a uniform approach in how courts treat infidelity clauses. Additionally, certain states have only addressed infidelity clauses in the context of postnups rather than prenups. In those states, it is likely that the legal precedents established for infidelity clauses in postnups would extend to prenups, as well. For example, the high California courts that have addressed this matter only addressed it as to postnups, but most California lawyers would agree that, based on the judicial opinions, this precedent extends to prenups, as well.
In states where this subject remains entirely unaddressed by a high court, the outcome is unclear. Will these undetermined states align more with the perspectives of California and Iowa, or follow the lead of Maryland? This uncertainty is why many lawyers approach with caution when considering the addition of infidelity clauses in prenups.
The bottom line: The law on infidelity clauses is not uniform across the U.S.
In the complex legal landscape of infidelity clauses, the enforceability of such provisions remains state-specific and case-dependent. As highlighted through cases in various states, including California, Iowa, Florida, Nevada, Hawaii, and Maryland, the legal outcomes diverge significantly. California and Iowa, for instance, declined to uphold infidelity clauses in postnups, citing violations of no-fault divorce principles and public policy concerns. In contrast, Maryland and Florida showcased a willingness to enforce infidelity clauses. These varied results highlight how state laws, public policy, different circumstances, and court interpretations all come into play when determining if infidelity clauses will hold up in court.
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]
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