Prenups: Should You Include an Infidelity Clause?
According to an article in Forbes, infidelity clauses, along with other “lifestyle clauses” in prenuptial agreements are on the rise, not only among celebrities but among the general public as well. These clauses are designed to discourage infidelity by penalizing the cheating spouse financially. Should you include one in your prenup in California?
Infidelity clauses, also known as “bad boy, bad girl” clauses, have gained notoriety with celebrities known to have “fling fees” worth millions in their prenups. These clauses penalize cheating spouses, typically with property division mandates at the end of the marriage. They can be bilateral, increasing the amount the monied spouse pays out or decreasing the amount the non-monied spouse receives in the event of either of them cheating. But do these clauses actually work, and how enforceable are they?
How Effective Are Prenup Infidelity Clauses?
The first challenge of a prenup infidelity clause may be proving infidelity. What constitutes cheating and what standard of proof must be met? Prenuptial agreements may be drafted with specific language addressing those questions, such as “clear and convincing evidence” and “consummated sexual intimacy.”
Cheating spouses may comply with the provisions of an infidelity clause in a prenup simply because they do not want the issue of infidelity to arise in court, particularly in high-profile cases. Infidelity clauses may be an effective deterrent to cheating for some spouses, although they are not strictly enforceable in California.
In Diosdado v. Diosdado (2002), a California trial court found, and the Appeal Court held, that the Diosdados’ prenup infidelity clause was contrary to public policy underlying “no fault” divorce laws and therefore unenforceable. This decision rendered infidelity clauses essentially ineffective in the state of California.
The Appeal Court stated that fault is not a relevant consideration in the legal process of dissolving a marriage, and that recovery in a “no fault” dissolution should be limited to half the community property, support, and attorney fees, with no large premiums for emotional angst. The infidelity clause in the Diosdados’ prenup attempted to impose a penalty on the breaching party of liquidated damages in the amount of $50,000 over and beyond a property settlement or support obligations.
One advantage of prenup infidelity clauses is that they force the couple entering into the agreement to discuss their feelings and expectations on the issue of fidelity, and talk about what they want out of the relationship and how they would like to be treated. This factor alone could make it worthwhile to include the clause in your prenup.
Los Angeles Family Law Attorneys
At the Law Offices of Omar Gastelum & Associates, PLC, we have many years of experience assisting clients in a range of family law matters. Our family law attorneys are experienced negotiators who can mediate settlements and dedicated advocates who can provide effective representation in a hearing when matters cannot be settled out of court.
We are well-versed in California family law, and skilled in drafting premarital and postmarital agreements. If you are considering a prenup infidelity clause, contact our office to schedule a consultation.