Can a Contract Save Your Marriage? Infidelity Clauses in Prenuptial Agreements

By Bruce E. Friedman

Infidelity often sounds the death knell of a marriage. One spouse cheats and the other becomes angry and threatens financial retribution.

Can a marriage be protected from infidelity?  Some lawyers and prospective spouses believe the infidelity clause is an antidote to adultery.

An infidelity clause in a prenuptial agreement states that if one party is proved to have been involved in an extramarital affair, the aggrieved spouse will receive a financial award from the cheating spouse.

Infidelity clauses were in the forefront when Tiger Woods was rumored to be seeking reconciliation with Elin Nordegren.  Nordegren reportedly countered with a demand for a prenuptial agreement and infidelity clause with a $350 million penalty should Woods stray again.

Though uncommon, infidelity clauses are not unheard of, they are often requested by a prospective spouse who loves her partner (future wives ask for these more than husbands), but who knows of or suspects a history of cheating, or who has been the victim of a cheating spouse.

Merely asking for such clauses can have negative effects, even though they are often stricken in the negotiations before the agreement is signed.

While they may not be “deal killers,” the future spouse can be disheartened that their betrothed would make such a request.

The major pitfall of a infidelity clause is that it can raise doubt or mistrust where none is warranted. For a couple where neither has any history of cheating, the clause might be cause for resentment.

What are the legal issues and concerns regarding infidelity clauses?

  • Infidelity clauses are likely binding, although Missouri appellate courts have never ruled upon them. Like prenuptial agreements themselves, they are contractual agreements entered into by the two parties and are usually found enforceable in most states, if done right.
  • It’s hard to define “infidelity.” For example, is it flirting with a co-worker? A husband’s trip to a gentlemen’s club or strip bar? Is kissing another women a betrayal? Is oral sex? Or is sexual intercourse the sole actionable offense? The agreement must clearly define what constitutes infidelity and how to prove it.  If not, the goal of simplifying the divorce process may not be accomplished.
  • What constitutes proof of an affair? Cash withdrawals, credit card receipts, cell phone records, even toll transponders or Uber records can point to errant spending or travel patterns. Are one’s suspicions worth hiring a private investigator to dig deeper?  That may be required to get to the truth.

Some family law attorneys advise pursuing infidelity clauses only when the other party has a proven history of cheating or extra-marital affairs. Where none is known or suspected, the clause goes beyond what couples are often trying to accomplish in a prenup, that is, a reasonable protection of one’s interests and an orderly divorce should the marriage fail without regard to conduct or fault.

The experienced family law attorneys at Paule, Camazine & Blumenthal can help you weigh this important issue as you consider a prenuptial agreement.

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Bruce E. Friedman

Bruce E. Friedman

With over 30 years of practice, St. Louis family law attorney Bruce E. Friedman has provided guidance in complex financial issues including high net worth individuals, business valuations, and maintenance. Additionally, Mr. Friedman provides other services such as prenuptial and postnuptial agreements and domestic partnership agreements.