Should there be a clause about adultery in your prenup?

On Behalf of | Nov 12, 2021 | Prenuptial Agreements |

You probably thought prenups were mostly about financial assets and what happens to them if and when your marriage is dissolved. You may not be aware of this, but if you wish, your prenup in Massachusetts can also feature a so-called “infidelity clause.” 

Well, according to one expert, “Prenups aren’t just about money and assets anymore. For better or worse, some couples are now including “lifestyle clauses” in these legal agreements as a way to establish expectations and guidelines for behavior within the marriage.”

The purpose of such a clause covering adultery is to “ensure that there are financial consequences for the cheater if that [marital] vow is broken.”

What are some of the drawbacks of an infidelity clause?

One snag is that in some states, these clauses are deemed “unenforceable.” Another challenge is digging up solid evidence of your significant other’s romantic roaming. It can be difficult to obtain direct evidence of infidelity, like a confession, but you may be able to find tons of circumstantial evidence.

It can also be problematic even to delineate exactly how cheating is defined. Does it amount to an all-out emotional and physical affair? Does incessant contact via phone, email and texting count?  Do only clandestine trysts in exotic hideaways matter? Does it include spending money on someone for luxury items like jewelry?

Are infidelity clauses in prenups useful?

Perhaps the most crucial facet of an infidelity clause to consider when crafting your prenup is whether it will actually inhibit your partner from straying during your marriage. 

A plus of having such a clause is that both you and your partner need to thoughtfully examine your feelings about it with each other. That back-and-forth can make it ultra-clear to your betrothed that you not only frown upon extramarital relationships but that you urge your dearest to remain 100% loyal throughout the duration of your marriage – or else there will be consequences later on — including a divorce.

Prenuptial agreements are something to bring up with your partner and with the person providing you with professional counsel.


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