According to the American Psychological Association, emotional and physical
infidelity are responsible for 20-40% of all divorces in the United States.
Because California is a no-fault state, infidelity rarely influences the
outcome of a couple’s divorce unless marital assets were used to
bankroll an affair. However, in certain situations, a spouse’s extramarital
relations can influence their marital settlement agreement or divorce
decree. For example, what happens if the cheating spouse signed a prenuptial
agreement with an infidelity clause?
Signing a Prenuptial Agreement
A prenuptial agreement, or “prenup,” is a legal contract that
establishes each spouse’s marital obligations and property rights
in the event of divorce. This contract can expedite the divorce process
and even protect a person’s marital assets from being unfairly distributed
by the court.
A prenuptial agreement can address the following divorce concerns and more:
- How will marital assets be divided?
- Which debts are part of the marital estate?
- What happens to any shared businesses?
- Which spouse is responsible for paying alimony?
- What happens to the family home?
These days, many couples – including famous Hollywood celebrities
– are including “lifestyle clauses” in their prenuptial
agreements. An infidelity clause, for example, states that an aggrieved
spouse may be awarded restitution if their partner engages in adultery.
Infidelity clauses, often known as “bad boy, bad girl” clauses,
can be bilateral, meaning that there is a penalty if the monied spouse
cheats (e.g. increasing the payable distributive award by 50%) or if the
nonmonied spouse cheats (e.g. decreasing the payable distributive award
by 50%). Some infidelity clauses even include property, such as the family
home, as the price of cheating.
Challenging an Infidelity Clause
But what counts as infidelity? While California courts do enforce infidelity
clauses, many aggrieved spouses run into trouble when it comes to defining
and proving adultery. After all, an intimate connection could be considered
emotional infidelity, but does it meet the ambiguous criteria set by the
infidelity clause? What about flirting or sexting? Is there physical contact
that isn’t considered cheating? The burden of proof ultimately falls
on the aggrieved spouse and their legal team. For this reason, it’s
easy for adulterers to challenge infidelity agreements.
Explore Your Legal Options
If you and your fiancé are ready to negotiate the terms of your
prenup, contact the
Fresno prenuptial agreement attorneys at Arnold Law Group, APC. Our legal team can guide the discussion and
help you complete a comprehensive legal contract. Alternatively, if you’re
preparing to file for divorce, we can represent your case and review the
terms listed in your prenuptial agreement.
Call Arnold Law Group, APC
at (559) 900-1263 to schedule your free consultation.
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