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Can a Prenup or a Postnup with an Infidelity Clause Deter a Spouse from Cheating?

Murfreesboro family lawyer explains how these agreements may benefit you

Prenuptial agreements are becoming more common. More people are recognizing the benefits such agreements can have, and they are losing some of their stigma. Many people who consider getting a prenup are focused on the division of assets in case of a divorce. Yet, there are many other things that a prenup can include, such as the so-called “lifestyle” clauses that are becoming more popular among celebrity prenups.

One of the most common lifestyle clauses is the stipulation that if one spouse cheats, they must pay a penalty. For example, actress Jessica Biel has a prenup that states that if her husband, singer Justin Timberlake, were to cheat, she would get $500,000.

As a family lawyer who practices in Murfreesboro, Franklin, and other middle Tennessee cities, I help my clients understand how a prenuptial agreement can help them and which clauses they should include. When my clients consider an infidelity clause, one thing we often talk through is whether that clause could actually be a deterrent to their spouse cheating (though it’s most commonly an issue for a woman trying to stop her husband from potentially cheating). There really is no definitive answer to that question, as there is no predicting a person’s behavior. However, it is reasonable to consider the infidelity clause a deterrent, especially if a lot of money is at stake.

As with any issue in a marriage or a divorce, the outcome will depend on the specific people and set of circumstances involved. If you have a wealthy spouse like Justin Timberlake, a $500,000 “penalty” for cheating might not seem like such a big deal. However, if your spouse has a typical, middle-class salary, paying you even $10,000 as a penalty for an affair might be something he or she wants to avoid.

For some spouses, knowing that there is an infidelity penalty in their prenuptial agreement might not be a deterrent, but might just make them work harder to keep the affair a secret. If you suspect adultery and decide to divorce, you will need to work harder with your attorney to uncover evidence of the affair, which would be required if you cited adultery as grounds for fault in a divorce.

In Tennessee, you can get a divorce on grounds of irreconcilable differences if both parties agree on the terms of a divorce and sign the appropriate documents. However, if your spouse is contesting the divorce, you will need to allege grounds to proceed to getting the divorce granted. Without a prenuptial agreement, even if you can prove that your spouse has cheated, you likely will not be granted a greater share of the assets and it is possible that you will not have increased alimony as a result. The courts have ruled that these decisions cannot be made on a punitive basis, such as when a spouse cheats. Therefore, if you had a prenup with an adultery clause, if the court enforces the agreement, you could be sure that you would get a greater payout upon the dissolution of the marriage.

If you didn’t sign a prenup before you got married, you can still get such a clause in a postnuptial agreement which is put together after you are married (if your spouse agrees to enter into such a written document). Some couples even invest in a postnup after the discovery that one of them has cheated. The postnup is considered an inducement to help the marriage succeed, or to help give assurances that the spouse won’t cheat again because they are agreeing that they will literally pay up if they do.

There really aren’t many guarantees in life, so you can’t be certain that a prenup or postnup with an adultery clause will deter your husband or your wife from cheating. However, if your spouse does cheat and you can prove it, having a prenup or postnup with the infidelity clause will probably help you get a bigger payout. If you are considering a prenup or postnup with an adultery clause, call me, Judy A. Oxford, a family lawyer who practices in Franklin, Murfreesboro, and other middle Tennessee cities, at (615) 791-8511 to discuss your options. You can also fill out the secure online form to schedule a free consultation.