A Primer on Prenups
Many people have heard of prenuptial agreements, but many others have misconceptions about what these documents are and how they work. A prenuptial agreement is a contract entered into by two parties who are intending to marry. Such a contract typically specifies the property rights of each spouse in the event of a divorce. In many cases, the law does not enforce promises made in a divorce settlement, unless there is a written contract evidencing such agreements. What happens in the event of a divorce is therefore of critical importance to young couples entering into marriage.
The purpose of a prenuptial agreement is to protect the interests of one or both individuals. However, given the perception that prenuptial agreements are merely a sign of mistrust , many couples shy away from entering into such an agreement before they marry. On the other hand, it is important for couples to understand that each party to the prospective marriage has different assets and debts and each party should be aware of the financial situation of his or her future spouse. There may also be instances where one or both parties have children and/or grandchildren, and it may be important that some assets be preserved for their benefit in case of death or disability. A prenuptial agreement is ultimately an opportunity for the parties to enter into a contract that will provide them with peace of mind before their marriage. Their support can be invaluable in completing this process.
What Exactly is an Infidelity Clause?
A relatively new invention in the marriage contract, infidelity clauses are gaining popularity and are becoming commonplace in prenuptial agreements. While many are familiar with the concept of a prenuptial agreement, few are aware of the many types of clauses that can be included in such a document. Depending on the state, a prenuptial agreement can contain almost any clause that both parties agree to, but the issue is that there are limitations as to what clauses a court is willing to uphold later down the line should the couple decide to end their marriage. So, many of these clauses are more for show than anything else. The infidelity clause, however, is one that many find appealing, and which some attorneys have begun to recommend in certain states. Typically, a couple each signs a prenuptial agreement before walking down the aisle. During negotiations for the agreement, the couple often argues over concerns about how marital property will be divided in the event of a separation or divorce. If both parties are able to reach an agreement, the contract is signed and put into place prior to the wedding date. This document goes into effect only if a divorce or separation occurs. If it does, real property and fees are divided according to the terms specified in the contract. The infidelity clause is one that is not often seen anymore, although a few decades ago it was quite common. With an infidelity clause, the parties agree that should either cheat during the marriage, there will be a reduction in the share of marital property that person receives in the event of a divorce or separation. If neither party cheats, the property is divided equally. However, if one does cheat, they receive a lesser share, and, in extreme cases, they may forfeit their interest in marital property completely.
Legality of an Infidelity Clause
As the divorce process is governed by state law, the enforceability of infidelity clauses varies widely among the 50 states. Exempt from this range, however, are the states of Mississippi, New York, and North Carolina, which have all expressly prohibited the use of infidelity clauses in a prenuptial agreement. In New Jersey, the enforceability of infidelity clauses has also been the subject of judicial scrutiny. The earliest known case involving an infidelity clause in a New Jersey prenuptial agreement involved a decision ordered by the Appellate Division in 1980. In that matter, the provision at issue was regarded as unenforceable since it was found to be incompatible with public policy. See Cohen v. Cohen, 173 N.J. Super. 35 (App. Div. 1980). Nearly 18 years later, in Werry v. Werry, 246 N.J. Super. 251, 587 A.2d 1364 (Ch. Div. 1990), another trial court endorsed similar reasoning. Here, the Court focused on the havoc such a clause could wreak on the institution of marriage, and ruled that the infidelity clause was both repugnant and unenforceable. While these two decisions have remained binding authority on this issue, the debate continues as to whether the law has changed since then.
Pros and Cons of Including an Infidelity Clause in Your Prenup
With any prenuptial agreement, consideration should be given to advantages for both sides against potential disadvantages. With an infidelity clause, the potential for advantages seems to outweigh the disadvantages, assuming that the wife is generally stronger in the marriage and the husband knows it. For the husband, the benefits include having a divorce based on infidelity determined by a judge rather than a jury, a benefit that could be much greater than getting the divorce on more favorable terms or without fault being assessed against him. Because the husband typically has been the decision-maker in the relationship regarding finances, the terms of the divorce based on infidelity should be more favorable to him. For the wife, an infidelity clause gives her a relatively affordable and easy way to achieve a divorce. However, if the wife finds herself in an affair with another man, she might believe that her best chances revolve around getting the husband to initiate divorce proceedings so that he is the one at risk of financial penalties if the divorce is based on infidelity. However, he may not want to get a divorce that costs him money and may insist on reconciling, making things more awkward in the long run.
Some of the disadvantages associated with infidelity clauses are that the wife may feel that her husband was waiting for an opportunity to catch her cheating. If the husband tries to enforce the contract, the infidelity clause could be used against him in claim of selective enforcement, unless the cheating was really egregious. If infidelity clauses are not carefully drafted, they could impose more substantial payment obligations or punishments for the wife that are actually against public policy. If the clause leaves it up to a judge to determine the severity of the punishment, instead of imposing specific punishments or amounts, then the wife can still argue that the courts have discretion to determine the appropriateness of the contract. In addition, while the prenuptial agreement could be enforceable, the clause within it requires that the wife actually be unfaithful before she can be punished by her husband.
How to Write a Good Infidelity Clause
A properly drafted infidelity clause must clearly and unambiguously express that the infidelity of one spouse may serve as a basis for divorce and/or the award of other benefits. If the infidelity clause is worded in a manner which is confusing or not understandable on its face, then it will likely be unenforceable. Additionally, with respect to infractions which might fall within the confines of an infidelity clause, the spouse seeking enforcement thereof must carefully consider what types of conduct at issue either: (i) need to be addressed, or (ii) should be able to defeat the provisions of the agreement. For example, if the agreement provides that any act of infidelity would entitle the injured party to an increased alimony payment , then the drafter should be mindful of whether such an increase should be triggered by: (I) sexual intercourse, (ii) kissing, (iii) spending excessive time with another, (iv) dating another, or (v) emotional infidelity. On the opposite side of the equation, the circumstances under which a divorce is to be filed and/or obtained are very specific requiring that the Procedural Rules of Civil Procedure be followed and that the courts have actual jurisdiction over the parties and their subject matter. Infidelity clauses do not alter these specific and unique procedures that are required for the filing and obtaining the divorce.
In the Real World: Examples
To explore the real-world implications of an infidelity clause, it’s essential to consider how courts have interpreted and enforced such agreements.
1. Case Analysis: Case 1
It can be useful to consider a few examples. In 2012, a Charlotte-based couple found themselves in a sticky situation after their 2008 prenup was put into question. The involved parties had initially agreed to a clause stating that cheating would result in a $25,000 payment to be made to the non-offending spouse. When the wife found a gay dating app on her husband’s phone, she requested the payment and divorced him. He refused to pay, claiming that no actual infidelity had taken place; the court agreed and ruled in his favor. On appeal, he went to the North Carolina Supreme Court and maintained his position that he was under no obligation to pay he did pay a penalty for not informing the court of a valid prenuptial agreement. The ruling was upheld.
2. Case Analysis: Case 2
A more serious example is that of a Texas couple in 2014. Their prenuptial agreement included a clause specifying exactly how much money would be lost by cheating partners. After 14 years of marriage, the wife discovered evidence of her husband’s sexual infidelity in 2011. She filed for divorce and sought damages as per the clause the husband filed a motion for summary judgment following the divorce but was found to have committed adultery and ordered to pay his wife her expected award. The husband appealed and lost again when the jury awarded her $108,000. The case went before the Texas Supreme Court on the basis that such an award violated public policy as set forth in its laws. The court disagreed; Texas law allows for spouses to enter an agreement as outlined in this case. The award was upheld.
3. Case Analysis: Case 3
Making the issue even more real-life and dramatic is the case of a Utah couple in 2016. Their prenuptial agreement included a 10% clause stating that cheating would result in the non-offending spouse owning both an additional two percent of the offending spouse’s album royalties and greater access to the spouse’s entire collection of fringe benefits after divorce. Upon requesting funds from his 50/50 state with the Utah Symphony, in order to provide this money to his ex-wife, the husband was forced to obtain an injunction. That injunction was denied, however. The wife succeeded on a claim of coercion, even though the family law judge who initially reviewed the case stated that the prenuptial agreement was fair and just.
When You Should Try Talking to a Lawyer
An experienced family law attorney can provide invaluable guidance when considering whether to include an infidelity clause in a prenuptial agreement. For one thing, a lawyer can answer your questions about the enforceability of such clauses under your state’s law. Laws vary when it comes to the conditions that sure be met for an infidelity clause be legally valid. A lawyer can also help you anticipate how your unique circumstances might result in a broader or more narrow wording of such a clause. If the person who would be on the giving end of a financial penalty for being unfaithful receives a lot more income than the other person during the marriage, for example, the penalty might not need to be quite as painful financially to act as a deterrent. If you think at this point that you want a prenup with an infidelity clause, you should ask a lawyer to elaborate on the benefits of including one. A pre-marriage agreement can aid couples by helping them clarify their expectations for finances and sexuality in the new marriage. It can be used to make concrete promises the couple already has made to each other. When you’re thinking about whether and how to include an infidelity clause in your prenup, consult a qualified and experienced attorney for legal guidance. He or she should be able to talk about your relationship and discern what wording would best reflect your attitudes and experiences.
A Closing Word about Marital Contracts
Understanding the nature of prenup and infidelities clauses can make a crucial difference in your marriage and divorce. By understanding the pros and cons of legall provisions regarding infidelities in your prenup agreement , you will be able to enter into a legal contract that is right for you. Whether you stipulate how you will handle infidelities in your prenup agreement or not in your marriage vows, it is important to understand your options. As such, when drafting a marital contract, take your time and seek professional advice.