Prenuptial Agreements and the Infidelity Clause

Jul 11, 2021 | Prenuptial Agreements, Second Marriages

Justin Timberlake was reportedly on the hook for $500k if he were to cheat on his wife Jessica Biel.

Charlie Sheen had to hand over $4 million to Denise Richards for his infidelity.

When Tiger Woods was caught up in a scandal it increased his divorce settlement by $80 million.

With all these high-profile marriages (and divorces) bringing the so-called “bad boy clause” into the spotlight, it’s enough to make the rest of us wonder if they may be on to something.

Prenuptial agreements aren’t just about who gets the house and how you’ll split the money anymore. Today’s couples are using the prenup to establish consequences for certain “undesirable” behavior during the marriage. Infidelity clauses are among the most popular additions to prenuptial agreements.

Let’s take a closer look at the infidelity clause and what it means for a prenup. 

What is an Infidelity Clause?

The infidelity clause falls under the umbrella of what are also known as “lifestyle clauses.” These are clauses within the contract that are related to behaviors or lifestyle choices within the relationship, rather than dealing with financial and other legal agreements. If a spouse breaks these agreements, there could be financial repercussions. 

Lifestyle clauses can include things like: 

  • How a spouse may (or may not) alter his or her appearance
  • Consequences for extramarital affairs (cheating)
  • How often the couple will have sex
  • Religious practices in the family
  • How often the couple will go on “dates” 
  • How much weight a spouse can gain 

However, it’s important to note that states have different laws and restrictions on prenuptial agreements and what kinds of provisions are (or are not) enforceable. It will typically be up to the judge to determine the outcome of the divorce and how the prenup will be applied. 

The infidelity clause is specific to the spouse’s agreement to be faithful during the marriage. For example, actor Michael Douglas is allegedly on the hook for a $5 million payout on top of a divorce settlement if he cheats on wife Catherine Zeta-Jones. 

Of course, the exorbitant financial penalties of Hollywood’s most fabulous aren’t a realistic comparison to everyday couples, it still gives you an idea of how the agreements work. 

Why the Rise in Infidelity Clauses?

There’s an explanation for the increase in these lifestyle clauses, including the overall increase in prenuptial agreements as well as the changes in divorce law that have removed the concept of “fault.” 

Among the newer generations of married couples, it’s well known that the divorce potential is high. Combine that with the fact that the Institute for Family Studies reported that over 20% of men and 13% of women have had sex with someone other than their spouse (during the time that they were married), and there’s a clear indicator for why some people would opt for some reassurances in their marriage. 

Another interesting statistic – infidelity for both sexes increases during middle age. If you take into account that more millennials are waiting to get married, there could be some explanation for the heightened concerns about infidelity. 

Of course, all of this occurs with the backdrop of the state of marriages in general. Despite the fact that millennials are getting married later in life, the divorce rate still hovers between 40% and 50%. That’s despite findings that the best chances of marriage survival are when couples wed between the ages of 28 and 32.

In addition, the “hookup culture” and Tinder dating environment where relationships get their beginnings doesn’t exactly set up the most stable foundation for trusting marriages. That’s not to say that those relationships are more prone to infidelity, it’s just a different approach to relationships and marriages than we’ve seen in past generations.

In fact, we know that many more couples choose to live together rather than get married today than ever before. Cohabitation has become totally acceptable within society, leading to more and more relationships without the legal bindings of marriage. It’s understandable why there could be some confusion when it comes to acceptable boundaries when those relationships ultimately do cross over to holy matrimony.

Here are some other interesting statistics about infidelity:

  • 20%-40% of divorces in the U.S. are the result of cheating during the marriage.
  • 40% of adults who have cheated at any point are currently divorced or separated. 
  • Men are more likely than women to still be married if they cheated (so maybe the ladies are a little more tolerant?).

Are Infidelity Clauses Enforceable? 

Meh, sometimes. It’s hard to imagine a judge ordering financial penalties because one spouse gained too much weight or spent too much time with in-laws. 

Some states do have regulations which outline what prenups can and cannot be used for, and there is a chance that a judge could refuse to uphold the agreed-upon terms.

Another potential issue is defining what constitutes “cheating,” if the prenup doesn’t lay out exactly what falls under the infidelity clause. For example, is a romantic affair without sex infidelity? Also, how will the spouse show the court that the clause was breached? Will physical evidence or an eyewitness be needed if the accused spouse denies his or her actions? 

There are so many ways to challenge the prenup that it might be difficult to get the desired outcome. However, there are instances where the agreement has been upheld in court. 

In general, the court won’t uphold a prenup that leaves a spouse in worse financial condition after the marriage than before the marriage began, so keep that in mind before attempting to take your cheating partner to the cleaners. 

Prenups as Deterrents

Some legal experts have suggested that the infidelity clause in a prenup can act as a deterrent for bad behavior even if they end up not being entirely legally binding. If nothing else, the prospect of a payout for a wandering… um, eye (?) may be enough to make an unfaithful spouse think twice. 

Also, including these types of clauses in the prenup forces both partners to have a serious discussion about what’s considered acceptable behavior before tying the knot. This is a really important point, and not one that should be overlooked.

Discussing an infidelity clause will bring about serious talks about things like the types of the behaviors that are crossing the line. For example, when is a business dinner with a colleague inappropriate? What if it’s just the spouse and a colleague of the opposite sex, and they’re drinking? What if there’s innocent flirting, but no physical contact? 

These types of concerns are what lead to serious blow-ups during marriages and have the potential to cause lasting damage. Getting all of the expectations out in the open ahead of time can help to prevent an unfortunate situation from ever occurring. 

This concept really applies to the whole prenuptial agreement process. The practice of getting one’s feelings about boundaries, roles within the marriage, and expectations for the future on the table for discussion can lead to a healthier, happier marriage.

Protecting Your Reputation

Another benefit of a prenup, and something that may be included in a lifestyle clause, are considerations of privacy should the marriage end badly. This is especially important to millennials and younger generations because of the rise of social media and the “document everything” culture. 

A prenup could help prevent one spouse from trashing the other on social media or spilling all of the secrets that no one else is supposed to hear. Likewise, a spouse caught cheating could ruin the reputation of the other spouse depending on his or her career or if they’re in the public’s eye.

That’s not to say that every couple going through a divorce immediately begins badmouthing one another, but it is a possibility. We can speak from experience when we say that people change when they’re getting divorced. The person that you were married to can quickly become like a stranger, saying and doing things that you never thought possible.

Final Thoughts

Prenuptial agreements are rising in popularity. The stigma that was once associated with these documents has all but disappeared, especially as millennials have really recognized the value of protecting their own interests when entering into a marriage. 

Infidelity clauses, and other lifestyle clauses, can add an additional layer of considerations to the prenup as the couple discusses and agrees on what behaviors are unacceptable within the context of the marriage. Even though the financial penalties may not be entirely enforceable for a breach of the agreement, often the discussion of the topics can set some solid boundaries for both spouses so the marriage starts off with an equal understanding of what’s expected of one another. 

Infidelity clauses, like prenups in general, offer couples an opportunity to speak openly about their feelings and needs and help each other understand what’s important to each partner. 

Open and honest communication is never a bad thing in relationships, especially at the start of a marriage. 


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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