Cheating Clauses - They Really Do Exist
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• Cheating clauses or infidelity provisions in postnuptial (or prenuptial) agreements may entitle you to financial compensation if your spouse is unfaithful.
• The general idea is that this language may deter certain behavior.
• But cheating clauses in a pre- or postnuptial agreement may make the agreement unenforceable and cost more to litigate.
You are happily married, raising children, and living your best life when you get a strange text from a friend. They saw your wife having dinner with another man in London (of all places). You know she's there for business, so you think maybe this was just a business dinner. But then your friend tells you that when the couple left the restaurant, they were holding hands.
You're in disbelief, feeling down, and furious.
Your friends tell you that getting a divorce would be for the best.
In a daze, you quickly get a consultation with your lawyer and say you want a divorce.
Your attorney begins the divorce proceedings and serves your spouse when she returns from London.
Your spouse begs you for forgiveness, saying the affair is over and will never happen again. In fact, that dinner was to end the relationship and recommit to you and the family. You don't trust her, but you still love her, and want to keep your family together for your kids.
Your lawyer tells you that if you don't want a divorce, that’s okay, but you should take steps to protect yourself in case this situation comes up again.
She provides the option of a post-nuptial agreement that will let you resolve property rights now and let you stay married for as long as you want.
You say, “Yeah, but can I put in a penalty for cheating?”
Your lawyer mentions that you can put a “cheating clause” in the post-nuptial agreement, saying that this was recently upheld in another state, but she’s unsure if the same will happen in your state. “If you think it will give you security,” she says, “then of course you can include it.”
Here’s what you should be clear about: A cheating clause or an infidelity provision in your postnuptial agreement may not be upheld in court and if it’s not, it may invalidate the whole agreement? That was the implication up top.
It may be expensive to try to enforce it through litigation.
However, if it keeps your spouse from cheating and they recommit to the marriage by signing it, then it may give you the peace of mind you desire.
Only you can decide if adding a penalty for cheating might be a useful step toward rebuilding trust with your spouse or if it will be a monument to your anger and doubt.