Infidelity is never far from the tabloid headlines. From Tristan Thompson and Khloe Kardashian to the recent Emily Ratajkowski rumors (and then Tristan Thompson again? Ugh!), cheating provides some of the juiciest gossip. Unfortunately, infidelity is not limited to reality tv gossip. When it comes to real life, cheating is equally rampant. In fact, twenty-five percent of men in monogamous relationships have reported cheating. Women ring in slightly less at fifteen percent. When it comes to marriage, infidelity contributes to 20-40% of divorces. Yikes!
While nothing can lessen the sting of infidelity, including an infidelity clause in your prenup can draw clear boundaries for you and your partner, which if crossed, can result in some pain to your partner’s pocketbook! Say what?! Ok first, let’s start with some background. By entering into a prenuptial agreement, you and your partner make decisions regarding your property, assets, and debt and what happens to those assets and liabilities should you divorce. If you forego creating a prenup prior to marriage, should you divorce, the division of all of your belongings (even your pets!) is left totally up to the court. A prenup, on the other hand, give you and your fiancé the power to make those decisions. Importantly, you must enter into your prenup (emphasis on the pre-) BEFORE your marriage.
Lifestyle Clauses
While a prenup is geared mostly towards making financial decisions, it can allow you to come to other agreements as well. Enter the lifestyle clause! Lifestyle clauses are a relatively new phenomenon and unsurprisingly, are wildly popular with celebs. Lifestyle clauses include many different types of prenuptial provisions which are generally non-financial in nature and target spousal behavior. Lifestyle clauses can cover:
- Social media
- Infidelity
- Cooking/cleaning responsibilities
- Spending limits
- Drug use
- And even weight limits for spouses (yuck)
If that last one throws you for a loop, you’re in good company (and this is an important point!). The enforceability of lifestyle clauses can be questionable. This issue can vary by state and even by topic. For example, a court may be reluctant to enforce a weight restriction provision in a prenup finding the term to be unfair or unconscionable. However, other lifestyle provisions such as required drug testing when there is a history of addiction issues may be considered more reasonable.
As far as infidelity clauses, the same principles may apply. If you and your partner have been in a committed, monogamous relationship for years with no infidelity issues, including an infidelity provision in your prenup just for the heck of it may be questionable to the court. However, if you have had issues with infidelity in the past, a court may find the inclusion of an infidelity clause in your agreement to be more reasonable (we’re talking to you, Khloe K!).
Enforcement Difficulties
In addition to the general uncertainty as to the enforceability of lifestyle provisions, these types of clauses also present other difficulties. For example, what is cheating? To you it may mean a physical affair, but to someone else, DMing could be a betrayal that crosses the line. There is so much grey area when it comes to infidelity, and everyone has a different definition. This is made even more difficult in the digital age when forms of communication are endless and private. Did it really happen if it happened in virtual reality? When drafting your agreement, it’s a good idea to be as specific as possible.
Proving infidelity is yet another challenge. Rumors and suspicious feelings won’t cut it when it comes to enforcing an infidelity clause. And at the end of the day, if your partner denies the cheating allegations, it is up for the court to decide.
Legal Repercussions
So, you may be wondering, “if my significant other does cheat, what happens then”? Typically, violations of lifestyle clauses – including infidelity clauses – result in a financial penalty. For example, you may include a provision in your agreement that states that if your partner is physically intimate with another person, they owe you $50,000. Now, the penalty amount should be feasible and within the realm of reason. For example, if your partner has a couple of thousand dollars saved up and you set the infidelity penalty at $10 million, a court will likely find that unreasonable and refuse to enforce it.
While the extra money in your pocket may not take the sting out of the pain of infidelity, these clauses still provide a benefit in the minds of those concerned about cheating. While of course, any partner should know better than to cheat, knowing that it could cost them financially if they slip up can have a huge deterrent effect on behavior. Additionally, including these provisions in your agreement provides you and your partner with an opportunity to discuss the issue and set clear boundaries.
Celeb Infidelity Clauses
Ok, now for the fun part. What better way to learn about infidelity provisions than to look at some real-life examples? These real-life examples just happen to be super juicy celebrity gossip. Two birds, one stone! Let’s start with a heal housewife. Theresa Guidice, who infamously spent 11 months in prison following bankruptcy fraud, allegedly insisted on an infidelity clause in the prenup with her former husband. If her hubby cheated, she didn’t just want to fine him, she wanted to have the entire prenup voided.
Next up, Justin Timberlake and Jessica Biel. You may remember the not-too-distant hiccup Justin had when he was caught cozying up to his co-star on a night out. While this may fall into that “grey area” we talked about above, it sure didn’t look good for the star. Luckily, Jessica has things covered. The couple’s prenup includes an infidelity clause entitling Biel to $500,000 if Justin cheats. As the couple seems to have made it through that bump in the road recently, let’s hope this prenup provision never needs to be enforced!
Let’s end on a success story. Catherine Zeta-Jones and Michael Douglas have been together for twenty plus years! That may be due in part to the deterrent effect of the infidelity clause in their prenup. Per their prenup, if Douglas cheats, Zeta-Jones is entitled to a whopping $5 million. That seems to have kept Douglas on the straight and narrow thus far!
Final Thoughts
When considering including an infidelity clause in your prenup, be sure to talk with your partner and set clear boundaries. This is important for your relationship as well as your prenup. Additionally, keep in mind the enforceability issues that these clauses have and check the rules in your state to ensure that infidelity clauses are permitted to begin with! Ready to get started?
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].
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