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Should I Put an Infidelity Clause in my Prenuptial Agreement?

Infidelity Clause

Should I Put an Infidelity Clause in my Prenuptial Agreement?

Prenuptial agreements, or “prenups,” can be an emotional thing to discuss, and some couples choose to forego prenups altogether. But ultimately, you should think of a prenuptial agreement like you think of life insurance: you don’t pay a premium expecting or planning to die tomorrow, but not having any life insurance at all is irresponsible. If you and your partner have made the very rational and smart decision to get a prenup, the next question is bound to be “what should our prenup include?”

The Infidelity Clause

An infidelity clause is one of the most common and most reasonable things to include in any prenuptial agreement, as the terms they make explicit are very widely regarded as an essential part of most marriages. Namely, an infidelity agreement makes it unquestionably clear that it is not acceptable for either partner to take part in extramarital affairs or relations. Additionally, infidelity agreements usually specify that, should either partner engage in adultery, they forfeit their claim to certain assets or are otherwise penalized in the case of a divorce and the eventual separation of belongings. Basically, infidelity clauses make it clear that both spouses take marital faithfulness seriously and it lays out consequences for adultery if a divorce occurs.

So, is an infidelity clause right for you, and should you include one in your prenuptial agreement? First, speak seriously with your spouse about whether or not monogamy is an important part of your marriage, and make sure that you are both on the same page regarding views surrounding adultery and other extra-marital relations. If you and your spouse do agree that your marital relationship should be exclusive, consider the pros and cons of including an infidelity clause in your prenup.

The largest “pro” is that an infidelity clause makes it unquestionably clear what marital expectations surrounding adultery will be, even when using something like cheater buster to find out if your partner has been unfaithful. In general, a prenup helps both parties know what expectations are around any large number of issues. And for many people who consider monogamy one of the bedrock principles of a sound union, stressing the importance of this moral issue through formal documentation is a wise idea.

Additionally, by solidifying this expectation in writing, any infidelity which may arise can be inarguably deemed inexcusable from a legal perspective. If divorce proceedings do occur, an infidelity clause assures that neither partner can argue to the judge that faithfulness was an ambiguous or unimportant part of their marriage. Adding to these two “pros”, an infidelity clause helps lawyers and judges in divorce court consider how adultery affects the division of assets and belongings, again putting this expectation into a legal framework.

The only real “con” to including a an infidelity clause in your prenuptial agreement, assuming your spouse and you agree that your unions should be strictly monogamous, is that discussing the details of a prenup at all can be emotionally taxing. Some may argue that an infidelity clause implies that adultery is inevitable. Again though, think of the whole prenuptial agreement like you would insurance: by including an infidelity clause, you aren’t hoping or expecting unfaithfulness, only ensuring that things will be easier to work out in divorce court if either partner disregards the clause.

Weighing both sides, it makes a lot of sense to include an infidelity clause in your prenup. If you and your spouse agree that monogamy is expected in marriage, and are working out the details of a prenuptial agreement, why not make your expectations well known and legally binding? If you have reached this decision, here are some tips for discussing an infidelity clause:

  • Explain that you don’t think your spouse is planning on committing adultery. Focus on the fact that prenups don’t mean a divorce is coming, and infidelity clauses don’t mean that faithfulness will be an issue.
  • Introduce an infidelity clause in the context of broader marital expectations. Have you and your spouse both create a list of things that are big no-nos for your marriage, and discuss with your lawyer how to incorporate your biggest expectations into your prenup in a legally binding and appropriate way.
  • Ask your spouse what hang-ups they have regarding infidelity clauses. Listen with an open mind, and then explain the “pros” from this article. Consider as well asking your lawyer to share their experience with why people include infidelity clauses in their prenups, and share thoughts on how an infidelity clause can be a good idea.

The Bottom Line:
If you plan on signing a prenuptial agreement, and monogamy is important to you and your spouse, you should probably consider putting an infidelity clause in your prenup’s final draft. While all marital issues (of course) come down to personal choice, there are very few reasons not to include an infidelity clause in your prenup if you and your spouse value fidelity.

If you have any questions about infidelity clauses, or prenuptial agreements in general, feel free to give us a call at +1.786.308.8588.