Should you add an infidelity clause to a prenup?


When you find the love of your life and are considering marriage, it can be a time of great excitement tinged with a bit of anxiety. Perhaps you both have parents whose marriages ended in divorce, and you’re worried that your relationship will do so, as well. To alleviate stress, many soon-to-be spouses sign prenuptial agreements. You can also sign a post-nuptial agreement after your wedding day. The question is: Should you incorporate an infidelity clause? 

Does an infidelity clause suggest that you expect your spouse to cheat? 

Adding an infidelity clause in a prenuptial agreement might be an added incentive for you and your spouse to resist the temptation to stray which is not uncommon in marriage. Many people sign a post-nuptial infidelity agreement after one or the other spouse has had an affair, but they’ve decided to stay together for the time being.  

If you incorporate an infidelity clause in a prenup, it doesn’t necessarily mean you don’t trust the person you’re marrying. It does, however, provide a way for you to protect your financial interests if an extramarital affair prompts you to divorce.  

Working out all the details of an infidelity clause is important 

Because terms such as “infidelity” are somewhat ambiguous, it’s critical that you and your partner clearly understand what each of you considers infidelity in your marriage. For instance, one of you might believe that infidelity only occurs if a spouse has sexual relations with another person, while the other spouse might define it as any type of romantic behavior, such as kissing or intentionally going on a date.  

It is helpful to have someone who is well-versed in legal terminology review your proposed prenuptial or post-nuptial agreement to ensure that the language you use is coherent and clearly understood by both parties.  

What should you list as the penalties in an infidelity clause? 

One of the benefits of drafting a prenuptial or post-nuptial contract is the ability to customize the agreement to fit your specific needs and goals. Perhaps you will decide to include an infidelity clause, which states that you are to receive a specific amount of money if your spouse is unfaithful, and you file for divorce. 

Some people also include agreements, such as stating that the non-cheating spouse retains ownership of the house in a divorce or receives a larger portion of equity if the house is refinanced. If you’re considering marriage, you can discuss such issues with your partner to determine if you both think an infidelity clause agreement is a good idea.

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