Does Your Prenuptial Need an Infidelity Clause?

Infidelity clauses in prenuptial agreements have been in the news lately, largely because of the relationship woes experienced by Tiger Woods and his ex-wife, Elin Nordegren. Can property division after divorce be facilitated through infidelity clauses in prenuptials? Experts say that most couples should avoid such stipulations in their premarital agreements, but some pairs could benefit from an infidelity clause.

Infidelity clauses are primarily useful for those whose prospective spouse has a history of extramarital affairs or other cheating. These stipulations provide additional financial relief for the spouse who is victimized by the affair. Most infidelity clauses are requested by the female partner who suspects her soon-to-be husband may have stepped out of a relationship before.

Attorneys give several examples of instances in which infidelity clauses are inappropriate. One woman wanted to include a provision that would have awarded her ownership of the man’s restaurant if she determined that he had cheated. Another sought to have potential alimony doubled in case infidelity was proven. Both of these women ultimately agreed to strike the provisions from the prenuptial agreement because there was no indication that either man would cheat; both men’s past was ostensibly clean.

If you do decide to pursue an infidelity clause in your prenuptial agreement, you should address several specific concerns. First, you and your prospective spouse need to create precise definitions for infidelity. While some people may define infidelity as going to a strip club, others consider anything less than sexual intercourse acceptable. The agreement must include clear guidelines for determining whether a spouse has cheated. Furthermore, both parties must agree on measures that can be used to determine whether a spouse has been unfaithful. The nature and amount of proof required to establish a spouse’s infidelity must be detailed in the prenuptial.

Remember that prenuptial agreements are contractually binding. People who enter into the agreements are rarely excused from them, so the agreements must include all necessary provisions when they are drafted.

Source: Huffington Post, “Infidelity clauses: Protecting marriage with fear of financial fall-out,” Barry Finkel, March 26, 2013.