Infidelity – the utterance of the word is enough to make any person in a monogamous relationship shudder. Though it’s true that the idea of open marriage is gaining more buzz than ever before (e.g. even the New York Times has shed some limelight on the trend), by no means does that necessarily make it a societal norm yet. Based on a study conducted by Compare Camp, only 4-9% of Americans report having been in a consensually non-monogamous relationship at some point in their lives. Simultaneously, this same study found 89% of those surveyed to have been involved in a monogamous relationship at some point. To no surprise, this information bolsters what most of us probably already know; though non-monogamy is gaining traction (especially among the younger population, likely perpetuated by hook-up culture), monogamy is still predominant for long-term relationships in the United States.
While to some, the idea of a partner having romantic relations with another person is shattering, others claim to be most troubled by the secretive nature associated with adultery. As the New York Times reports, a jarring 15 percent of married women and 25 percent of married men have had extramarital affairs in the United States. Of course, these affairs can only be toxic to a relationship if they are exposed, otherwise, they can remain one spouse’s dirty little secret for, well, as long as they can manage to keep it.
So, how many marriages do come to a bitter end on account of infidelity? The American Psychological Association reported the following findings regarding the issue:
- Infidelity in the U.S. is responsible for anywhere from 20-40% of divorces.
- 40% of adults who have cheated at any point are currently separated or divorced.
- Men who cheated are more likely than their female peers to still be married.
- 44% of women who have been unfaithful before are still married, while 47% are either divorced or separated.
While these statistics prove that infidelity put marriages at a much higher risk for divorce, some married individuals live in perpetual fear of their partners cheating – whether they are or not. There is such a myriad of factors that can drive a person to cheat, it’s difficult to say precisely why people do. At the end of the day, it is a matter of commitment and willpower that prevents individuals from cheating and keeps couples to be loyal to one another. Because humans are creatures of free will, there is no absolute way to prevent infidelity. While some individuals may fear how their reputations or relationships would be affected if they were exposed as a cheater, what if they had legal and financial repercussions to fear?
Cheating Clauses – Yes, Those Are A Thing
No, this isn’t a hypothetical John Tucker Must Die sort of analogy. Rather, prenuptial agreements (prenups) can contain provisions referred to as cheating clauses, which can entitle one spouse to financial gain in the case that their partner commits infidelity. Yes, these are legitimate, and they are considered a type of “lifestyle clause.” What’s a lifestyle clause you may be wondering? The deal is, prenups typically consist of clauses, or provisions, that pertain to different aspects of your marriage: debts, alimony, financial gifts, inheritances, etc. The general idea is that the clauses of these contracts are able to override a state’s divorce rulings, thus allowing couples to dissolve a marriage on their own terms in the case of a potential divorce.
In addition to the more commonplace financial clauses, lifestyle clauses pertain more to the behavior of a spouse in a marriage. These sorts of clauses probably constitute some of the more outlandish and bizarre celebrity prenups that you’ve heard of. As an example, lifestyle clauses could relate to how much a spouse can weigh- e.g. a lifestyle clause written into the prenuptial agreement between singer and actress Jessica Simpson and her hubby, Dallas Cowboys quarterback Tony Romo stated that Simpson was not allowed to weigh more than 135 pounds throughout the course of the marriage. If her weight did go above the 135 pounds, she would owe Romo $500,000 for every pound above 135 lbs. that she gained. I’m sorry….. what?! anyone else think that’s insane?
Similar to curbing infidelity, these clauses can also be used to curb other bad behaviors. Take for example The Undoing star Nicole Kidman and country music sensation Keith Urban’s prenup. While provisions in their contract entitle Urban to a $640,000 annual payout from Kidman, recovered cocaine addict Urban will lose his claim to these earnings if he begins using again. You can read more about wild celebrity prenup clauses in our blog post on the topic, which also covers the infidelity clause in Jessica Biel and Justin Timberlake’s prenup. The clause supposedly grants Biel half a million dollars if Timberlake is ever caught cheating on her. We know that he’s had some close calls in the past, so we’re curious if Biel has ever had to put the clause to use!
Anyways, what does all of this celebrity hubbub mean for a cheating clause in the layman’s prenup? Well, there are a couple of things to consider if you want to institute an infidelity clause into your prenup. At the end of the day, faithfulness is a main contributing factor to a monogamous marriage – the idea itself is included in the wedding vows of most couples. Adding financial consequences to discourage breaking this vow is actually one of the most popular up-and-coming trends in terms of prenup lifestyle clauses. Because adultery no longer constitutes “fault” in the divorce laws of most states, cheating may not be taken into consideration when alimony or asset distribution is being ruled upon. In other words, the unfaithful spouse will typically not have to face any sanctions in state divorce proceedings they may have in the past, even though they’re typically seen as the ones “in the wrong” by the other spouse. A prenup clause that demands some type restitution for cheating ensures the wronged party in a way, justice, for infidelity.
Where do you draw the line between flirting and full-fledged cheating? Of course, the secrecy provided by smartphones and our “always-on” communication culture makes it easier than ever before to emotionally cheat. It’s important to define in your prenup clause what exactly constitutes cheating, and consider how you will be able to prove it to a court. While some may consider a spouse’s night out at the strip club cheating, others may only consider full-fledged sexual relations with another individual cheating – exact definition in the legal document is key. When it comes to proving infidelity, witness accounts might not be enough, in order to properly put a cheating clause to use, you may have to prove infidelity with images, text message records, phone call recordings, etc.
While infidelity may be difficult to prove, the good news is that many cheating spouses will not put up enough of a fight to ever reach the point of having to prove infidelity. Many cheating individuals will not want their dirty laundry aired in public court proceedings, so they will be less likely to challenge the prenup/their spouse. Along these same lines, lifestyle clauses can be trickier to enforce in a court of law than finance-related clauses. For example, the state of California will typically not enforce lifestyle clauses… despite the fact that most celebrities include them in their prenups. However, a prenup is in many ways an emotional document, and there is power that exists in these clauses beyond the legal enforceability.
Prenups are undoubtedly a practical, forward-thinking tool for financial management. In fact, one of the best things about prenups is their ability to force couples to discuss finances early on in the relationship. It has been proven that couples who discuss finances more often are happier, and benefit from more satisfying marriages. Likewise, couples who institute cheating clauses must facilitate discussions surrounding infidelity head-on, which means they will talk about expectations in the marriage and their feelings in a way that is straightforward and honest. While the conversation can feel a tad awkward, it is assuredly healthier to enter a marriage with expectations out on the table, so that both spouses know what to expect.
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