A prenuptial agreement, or prenup, is a contract a couple enters into before marriage which sets out the division of assets in the event of a divorce.
The infidelity clause is among a number of ‘lifestyle clauses’ which, unlike traditional prenups, deal with behavioural issues over the course of a marriage.
The growing popularity of infidelity clauses could be explained by the fact that many US states have removed it from the factors to be considered when determining the distribution of assets or maintenance payments, the magazine speculates.
According to New Jersey lawyer Bari Z. Weinberger, “adultery can still be listed as a ground (reason) why the divorce was filed, but most states typically will not monetarily sanction a spouse who has been unfaithful”.
“[A] judge giving one spouse more in alimony or a larger chunk of a retirement asset just because the other spouse cheated is generally not a realistic expectation”, she added.
The clause is not without its problems, however. Proving infidelity is notoriously difficult, as is defining exactly what constitutes cheating.
“My advice to clients is generally that they may not be enforceable, but that they can provide a deterrent for a spouse who would otherwise be unfaithful. Most importantly … the idea of an infidelity clause, forces parties to discuss this issue and their expectations regarding the behaviour of the other party.”
“With an infidelity clause, not only does the person requesting the clause make their feelings clear about possible infidelity, the proposal of this clause alone can force couples to communicate about what they want out of their relationship, how they will treat each other and how they will communicate their feelings. This exercise alone can be beneficial, no matter whether the clause is ever actually used.”