Prenup Cheating Clause: What You Need To Know

You’ve probably heard about prenup cheating clauses. Who wouldn’t want to make sure their partner stays faithful?  The real question is: Are prenup cheating clauses enforceable? And is one right for your relationship and future? Let’s find out all that and more in this article.

First, let’s go over a few key details of prenup cheating clauses:

• A prenup cheating clause, also known as an infidelity or no-cheating clause, specifies financial consequences for unfaithfulness. 
• A prenup cheating clause may outline financial penalties, like asset loss or damages, for infidelity. Enforceability, however, varies by state.
• An infidelity clause can be tricky and, in some cases, might even jeopardize your entire prenup. In some states like California, infidelity clauses are generally not enforceable. In other states like Maryland, infidelity clauses have been upheld. 

To help you avoid costly mistakes as you navigate this process, Neptune, a prenup concierge service, connects you with vetted, experienced family law attorneys who understand the local laws in your area and provide guidance every step of the way.

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 today, 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 couples 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, an infidelity clause spells out consequences that a partner will face if they are unfaithful during their marriage. 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 being unfaithful, 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?

Clauses addressing infidelity in prenuptial agreements aren’t always enforceable, since proving it can be difficult.

Michael Cotugno, Managing Partner of Neptune Legal, shared this on infidelity clauses: “Infidelity clauses are generally unenforceable in California because they violate public policy. California is a no-fault state.” 

In addition to California, other states like Nevada and Hawaii also follow no-fault divorce laws. In these states, an infidelity clause might conflict with 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’re legally sound. 

It's important to note that not all states enforce infidelity clauses in prenups. If a court finds the terms within the prenup invalid, it might throw out the entire thing.

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. Let’s say you plan to include an infidelity clause in your prenup. In that case, it’s essential to ensure the definition section explicitly spells out what you and your partner mean by ‘cheating’ in your relationship.

For example, you and your partner should be on the same page about answers to the following questions:

• Do you consider it infidelity if your partner has intimate conversations with someone else?
• Is physical touch considered cheating?
• What about emotional affairs?

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

Ideally, both you and your partner should hire separate attorneys. If you share an attorney, the prenup may not be enforceable. Ensure each clause you want to include is clearly defined and reasonable, meaning they are not one-sided, unconscionable, and follow state laws.

The Upsides of a Prenup Cheating Clause

Infidelity clauses can be tricky, but including one in your prenup might be good for your relationship. Here are some upsides of adding one to your prenup:

It Discourages Cheating

An infidelity clause can discourage cheating. How? 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 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

Infidelity 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. This 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.

Start the Prenup Process on the Right Foot With Neptune

A prenuptial agreement, with or without a cheating clause, allows you to clarify what matters most in your relationship. When you’re ready to create a prenup, Neptune is here to help.

Neptune is the financial concierge that wealth-building couples trust to lay the foundation for their shared future, starting with prenups. By combining emotionally-intelligent AI, vetted legal experts, and transparent flat-fee pricing, Neptune creates financial alignment, transforming a traditionally tense process into a relationship-strengthening experience. 

Start the conversation with Neptune today.