Do you need an infidelity clause in your prenup??

Jul 13, 2021 | California Prenuptial Agreements, New York Prenuptial Agreements, Prenuptial Agreements

Cheating – from Tiger Woods (and several women) to Tristen Thompson and Khloe Kardashian, the story of a scandalous affair is always sure to keep us glued to the headlines of celebrity gossip magazines. Unfortunately, though, cheating is not strictly limited to the rich and famous. As national surveys by the American Association for Marriage and Family Therapy found, about 15 percent of married women and 25 percent of married men have had extramarital affairs. Though the term “cheating” means something a bit different to everyone, concerns of a partner having an affair is something that just about anyone in a monogamous relationship can relate to. After all, cheating violates the singular rule of monogamy – to only be intimate with one person.

While the American Psychological Association reported that infidelity in the U.S. is responsible for anywhere from 20-40% of divorces, a straying partner does not always necessarily spell the end of a marriage. In fact, many couples who go through infidelity claim to come out stronger thanks to couples’ therapy, etc, albeit the process is utterly heartbreaking, and can really warp the sense of trust in a relationship. If you’re somebody who would rather never undergo the pain that is associated with infidelity, a non-cheating clause might be something for you to consider. Yep – you heard us right. You can in fact create legal ramifications for your partner if they cheat.

Let’s start with the basics – a non-cheating or infidelity clause is just one type of provision that can be added to a prenuptial agreement (prenup). Basically, rather than leaving it up to the fate of a court ruling, a  prenup outlines how finances will be split between a couple in the case of a divorce. While these contracts traditionally get a bad wrap and have often been seen as taboo, they’re becoming increasingly popular amongst millennials. This can be attributed to high divorce rates from their parents’ generation, large amounts of student loans debt compared to prior generations, amongst other reasons. Nobody wants to be left paying off their ex’s debts after a divorce, and simultaneously, nobody wants to lose hard-earned assets. While traditionally, a prenup is made up of clauses related to finances and assets, lifestyle clauses can also be written into the contract.

Lifestyle clauses are a relatively new trend, and are centered around the behavior of a spouse. These sorts of provisions help individuals to ensure they’re getting what they want out of a marriage. The most common form of penalty for violating a lifestyle clause is financial compensation. So, what kind of things are mandated in lifestyle clauses?

  • Random drug testing to be conducted (particularly used on spouses with a history of drug addiction)
  • Spending limits, especially to curb gambling addictions
  • The frequency of sexual relations between the spouses
  • How much weight one spouse can gain
  • How many homemade meals will be prepared by a spouse per week
  • A prohibition on posting information about a spouse on social media in certain circumstances

And of course, clauses that prohibit extramarital affairs, or as they’re formally referred to, infidelity clauses.

If some of these seem a bit, well… extreme to you, you’re not alone. In fact, it is up to the discretion of a state to rule individual lifestyle clauses as enforceable or not. While the The Uniform Premarital Agreement Act (UPAA) conveniently provides states with non-partisan crafted legislation that they can choose to adopt in full, in part, or not at all. Even this act takes no explicit stance on lifestyle clauses. While an infidelity clause may bring peace of mind to certain spouses, it’s worth considering the following before requesting one:

If your partner has no history of cheating, you may be dissuaded from including one.

As this lawyer outlines in a Huffington Post blog, if there isn’t a proven history of cheating, infidelity clauses will often end up being struck from a prenup during the drafting process. Many lawyers feel that this type of clause, without a history of similar incidents, goes beyond the realm of reasonably protecting someone’s interests, which is the main goal of a prenup.

Difficulty to enforce.

Infidelity is already difficult to prove. If there is a lack of history with infidelity, an infidelity clause may be even more challenging to enforce in a court of law. The reason these clauses are challenging to prove in court circles back to a point we made at the beginning of this article, the concept of cheating is quite vague and subjective. While going to a strip club may be considered cheating for some couples, others may have much more laid back interpretation of what constitutes infidelity, especially as non-monogamy becomes more culturally accepted.

Defining infidelity is made even more challenging by smart phones and modern technology. Thanks to dating websites and the privacy enabled by texting, a new realm of possibilities for what can be considered “emotional cheating” is opened up. When it comes to writing an impactful infidelity clause, the more specifics, the better.

While the thought of adultery being a punishable crime now seems a bit medieval (right up there with witch trials), in several states it is still technically “illegal” to cheat on your spouse. Though you won’t be hung from the gallows these days, a spouse may hold the right to take a spouse who has strayed to civil court for adultery. This gives additional reasoning for including an infidelity clause, and lessening the chances of adultery occurring at all.

Celebrity Infidelity Clauses

Everyone knows that the world of Hollywood is notorious for short-lived marriages and scandalous affairs, that’s precisely what makes infidelity clauses so popular for celebrities! Interestingly enough, it’s reported that Ben Affleck and J-Lo never hit the altar because of Jennifer Lopez’s demands for an infidelity clause, though the two entered the relationship when Lopez was still married to her second husband, Cris Judd. Now that the couple is back together and it feels as if the glory of the early aughts is restored, we’re curious to see if the couple will ever get hitched, and if they’ll include a prenup when they do it!

Of course, there are some long-standing marriages in the limelight who have successfully implemented prenups with infidelity clauses. Catherine Zeta-Jones and Michael Douglas have had a successful two decades of marriage together, and have even been having some adorable press opps lately discussing their plans for becoming empty nesters. If the couple ever divorces, Zeta-Jones will receive $1.5 million for every year of marriage, so she’s now looking at at least $30 million. Plus, if Douglas is caught cheating, he’ll owe his wife a $5 million “straying fee.” We can assume that Douglas cheating in his first marriage (repeatedly, with his wife’s best friend) is what spurred Zeta-Jones to include the clause, and that is was relatively easy to write this in, considering the circumstances. Douglas also included a strategic lifestyle clause of his own. The confidentiality clause in this couple’s marriage prevents Zeta-Jones from being able to share any confidential details of their marriage. Though this is relatively subjective, it’s likely that the prenup includes specific language about what she can and cannot say.

Justin Timberlake and Jessica Biel are also reported to have an infidelity clause in their prenup, entitling Biel to $500,000 if Timberlake is ever caught cheating. This amount doesn’t seem very significant considering how successful and high-earning the couple is. Plus, the jury has now been out a few times now on whether or not the man who claims to be bringing sexy back has had extramarital affairs. Who could forget the viral videos of Timberlake’s cozy night out with Alisha Wainwright, followed by a public apology (his first of many, as of late). If you’re wondering just how effective this clause is for this couple in particular, you’re not alone.

A recently-dissolved couple, Bradgelina (Angelina Jolie and Brad Pitt), were also rumored to have an iron-clad prenup. Because this power couple owned so many estates together, it’s likely that their prenup made the divorce process much more streamlined. Allegedly, their prenup also included an infidelity clause awarding Jolie in the case that Pitt ever strayed. Never forget that Bradgelina began during the filming of Mr. & Mrs. Smith, while Pitt was dating Jennifer Aniston. Thanks to this history of infidelity, much like with Michael Douglas, it was probably easy to incorporate an infidelity clause.

If you’re eager to read up on some of the most ridiculous celebrity prenup clauses, check out our “Celebrity Prenups Are Pretty Entertaining” blog. From the basics to the intricacies of prenups, the HelloPrenup team is packed with legal experts who are ready to answer your questions, help you protect your assets, and remain confident and prepared for the future.

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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