A prenup cheating clause, also known as an infidelity or no-cheating clause, specifies financial consequences for unfaithfulness. While you can’t guarantee that your partner won’t cheat, this clause helps establish clear expectations and financial protections in case infidelity occurs.

You need to keep in mind, though, that an infidelity clause can be tricky and might even invalidate your entire prenup in some cases. So, before you choose to include it in a prenup and open you and your partner up to what can potentially be an unnecessary and uncomfortable conversation, it’s important to know what to expect, especially since the rules about these matters vary from state to state.

To help you avoid making any costly mistakes as you take your prenup journey, Neptune, a prenup concierge service, connects you with experienced family law attorneys who know the local laws in your area. 

Chat with us today to start the process.

What Exactly Is a Prenup Cheating Clause?

Prenuptial agreements cover a lot of different issues related to assets, debts, and other financial matters that come up in a relationship. But nowadays, some couples include clauses that go beyond just money and assets. Typically, these clauses define what happens if one partner is unfaithful to the other.

Given that more than 40% of married people in the US go their separate ways because of extramarital affairs, it’s no surprise that some couples would want to include infidelity clauses in their prenup. So, what does this mean? 

Basically, a cheating clause spells out consequences that a partner will face if they are unfaithful during their union. The partner who cheats may be at risk of losing some of their assets or face other financial penalties. For example, an infidelity clause might state that if one spouse is caught cheating, they will be required to pay $50,000 in damages to the other spouse. This applies if the couple chooses to end their union due to infidelity.

Adding these types of provisions to your prenup might seem straightforward, but it’s not always enforceable in all states.

Are Prenup Cheating Clauses Enforceable?

Infidelity clauses in prenuptial agreements aren’t always going to be enforceable in some areas because proving infidelity can be a challenging task. California, Nevada, and Hawaii, are all states that follow no-fault divorce laws. In these states, a cheating clause might conflict with the principles of a no-blame divorce.

However, in states like Texas, these clauses may be enforceable if they are clearly written and have fair terms. Even then, courts will review them individually to ensure they comply with public policy. It's important to note that not all states enforce no-cheating clauses in prenups. If a court finds the terms within the prenup invalid, it might throw out the entire thing. 

So, if you want to add an infidelity clause to your prenup, it’s usually a good idea to consult an experienced family law attorney who knows the rules in your area.

What Actually Defines Cheating?

Here’s one common reason an infidelity clause might fail: vagueness. If you plan to include a cheating clause in your prenup, it’s important to make sure the definition section clearly spells out exactly what you and your partner mean by “cheating” in your relationship.

For example, do you consider it infidelity if your partner has intimate conversations with someone else? Is physical touch considered cheating? What about emotional affairs? You and your partner need to define the actions or behaviors that you both agree constitute infidelity.

Avoid leaving room for any gray areas when defining cheating or infidelity. That’s because any vague terms or wordings can lead to lengthy (and costly) back-and-forth in court. 

Ideally, you and your partner should each hire experienced attorneys to draft and negotiate the terms of your prenup. Make sure each clause you want to include is clearly defined and reasonable―meaning they are not heavily one-sided, unconscionable, and aren’t against public policy.

The Upsides of a Prenup Cheating Clause

Infidelity clauses can be tricky, but including them in your prenup might be good for your union. Here are some upsides of no-cheating clauses:

It Discourages Cheating

An infidelity clause can discourage cheating. Why? It imposes financial penalties. You and your partner can have peace of mind knowing there are consequences for unfaithfulness. It can also reinforce your commitment to each other.

Financial Compensation

If the relationship ends because one spouse cheats, an infidelity clause (if enforced) could mean the faithful spouse gets compensated financially. And depending on what’s outlined in the clause, they might even receive more assets as well.

Clear Expectations

If well-drafted, these clauses clearly define what constitutes cheating and spell out the consequences if one spouse cheats. This sets clear expectations about boundaries within the relationship. Besides, including these clauses in your prenup can create space for honest conversations. This way, you and your partner are clear about your commitment and understand your responsibilities to one another.

Downsides of a Prenup Cheating Clause

While an infidelity clause might deter cheating (to some degree) or even ensure fair financial outcomes, it also comes with some drawbacks:

Issues With Enforceability

No cheating clauses aren't always enforceable because they can clash with no-fault divorce laws in many states. In some instances, courts might find them unfair, and proving infidelity can be difficult.

Legal Complications

These clauses might even lead to costly legal battles in court over their validity or even their interpretation of them―which defeats the very purpose of crafting a prenup in the first place.

Emotional Impact

Your partner might view such a clause as a sign of mistrust, especially if they have no history of cheating or haven’t shown any reason to doubt their commitment. This can cause distrust to form in your relationship even before you get married. You don’t want to start your union off on the wrong foot. 

Start the Prenup Process on the Right Foot With Neptune

A prenuptial agreement allows you and your partner to clarify what matters most in your relationship. If you plan to include cheating clauses in your agreement, remember that they can be tricky and aren’t always enforceable. In any case, a family law attorney can help you address these complexities.

If you’re looking to create a legally valid prenup, consider chatting with us today. Neptune connects you with attorneys who have extensive experience in these matters. With their expertise, you can create a prenup that includes fair and reasonable provisions that work for both you and your partner.