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Can a prenup have a cheating clause?

With the right clause in your prenup, you can make sure there are financial consequences if your spouse cheats.

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Infidelity is responsible for as many as 40% of U.S. divorces. According to national surveys by the American Association of Marital Therapy, 15% of married women and 25% of married men have had extramarital affairs. And while you can’t stop your spouse from cheating, with the right clause in your prenup, you can make sure there are financial consequences if they do. That’s right: A prenuptial agreement can include a clause related to infidelity, commonly referred to as a "cheating clause." Such a clause would typically state that if one spouse commits emotional or sexual infidelity, they would forfeit certain rights or benefits provided for in the prenup. Financial penalties may include mandatory cash payouts, increased spousal support, or an unequal division of the marital estate.

This is something that’s been popularized by celebrity couples. Charlie Sheen and Denise Richards, Jessica Biel and Justin Timberlake, and Catherine-Zeta Jones and Michael Douglas are rumored to have had infidelity clauses in their premarital agreements. In fact, it’s reported that Jennifer Lopez never married Ben Afflect back in the early 2000s because of her demanding prenup: she wanted half of his net worth if he ended up cheating on her.

But, whether a cheating clause is actually enforceable in a prenup really comes down to the state you live in. California, for example, is opposed to infidelity and other lifestyle clauses—so much so that by including one, you risk invalidating the entire agreement. In fact, even if you have solid proof of cheating, California will not investigate the misconduct of either spouse in a divorce proceeding.

But, if you live in a state where it’s upheld, like Maryland, there’s a chance that the court will require the cheating spouse to pay. Overall, infidelity clauses do not hold up in many courts across the country, as they may be seen as encouraging or incentivizing divorce, or as a violation of public policy, and you run a risk of the court throwing out the whole agreement by adding one.

At the end of the day, while a cheating clause may not be for everyone—and even a risky move, depending on where you’re getting married—it highlights that prenups can go far beyond just financial matters, and can be customized to your personal situation.

Sources: General Lifestyle Clauses You Both Should Know, 2022, FindLaw.com, 2022

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