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Infidelity Clauses: Protecting Marriage with Fear of Financial Fall-Out

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Infidelity can often be the death knell of a marriage. One spouse cheats on the other, causing anger, threats of financial retribution and hostility.

Yet, can a marriage be protected from infidelity? Some spouses and divorce lawyers believe the infidelity clause is the antidote to adultery.

An infidelity clause is a component of a prenuptial agreement stating that if one party is proved to have been involved in an extramarital affair, the aggrieved spouse will receive a financial award from the cheating spouse.

Infidelity clauses came to the forefront in January, and again in February, when Tiger Woods was rumored to be seeking back ex-wife Elin Nordegren (He since announced that he's dating skier Lindsay Vonn.) At the time, Nordegren reportedly countered with a demand for a prenup and infidelity clause with a $350 million financial penalty should Woods stray again.

Though rare, the infidelity clause is not unheard of. In most cases, they're requested by a prospective spouse who loves her partner (it's most often the wife asking for the clause), but may know of or suspect a history of cheating.

In one case, I represented the husband-to-be in the drafting of a prenuptial agreement. It was both spouses' second marriage and both were in their 40s. The wife's attorney inserted the infidelity clause demanding she get my client's restaurant if he were found to have cheated on her. Given he had no history of an affair in his previous marriage, we struck that from the prenup.

In another situation, the wife asked for a doubling of all alimony settlement figures from $150,000 to $300,000 if her husband had an affair. Given the husband in this case also had no history of cheating, again, the language was removed.

While neither attempt was a "deal-killer" for the marriage, in both cases the husbands-to-be were disheartened that the wife would make such a request.

Therein lies one pitfall of a infidelity clause. Such a request could raise doubt or mistrust where none is warranted. For a couple where neither has any history of cheating, the clause might be cause for resentment.

What are the legal issues and concerns regarding infidelity clauses?

  • Infidelity clauses are binding. Like prenuptial agreements themselves, they are contractual agreements entered into by the two parties and found enforceable in most states. So neither should have any expectation of excusal from the agreement should he or she transgress.
  • It's hard to define "infidelity." For example, is it flirting with a co-worker? A husband's trip to a gentlemen's club or strip bar? Is kissing another women a betrayal? Is oral sex? Or is sexual intercourse the sole actionable offense? Interpretation -- and mere suspicions -- must be avoided. The agreement must clearly define what constitutes infidelity, and proof thereof.
  • What constitutes proof of an affair? Cash withdrawals, credit card receipts, cell phone records, even toll transponders can point to errant spending or travel patterns. Are one's suspicions worth hiring a private investigator to dig deeper? That may be required to get to the truth.

Many family law attorneys advise pursuing infidelity clauses only when the other party has a proven history of cheating or extra-marital affairs. Where none are known or suspected, the clause goes beyond what couples are often trying to accomplish in a prenup -- that is, a reasonable protection of one's interests.