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Including an Infidelity Clause in Your Prenuptial Agreement


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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