Before we can discuss an infidelity clause, let’s define a marital agreement. A marital agreement can be a prenup that is signed before marriage or a postnup that is signed during marriage. It usually divides the community estate into two separate estates, one for each spouse. In Texas, a postnup is called a “partition agreement” because it partitions the community into two separate estates. Either agreement can ensure that no community property is created, and can require that in divorce each spouse keeps his and her own separate property. In death, each agrees to accept the other’s will, no matter how it disposes of the deceased’s separate property.

Infidelity Clause

An agreement is typically sought to provide assurance of the outcome in the unfortunate event of divorce or when a spouse dies. Hopefully, the agreement will also reduce the cost and stress of probate or divorce.

Infidelity Clause In A Marital Agreement

People sometimes want to include fault provisions in a marital agreement that if a spouse commits a prohibited act, he or she will receive less property. The most common is an adultery provision or infidelity clause. There is usually a vague notion that the outcome of divorce should be different if one spouse commits some specific transgression. This always involves money.

People tend to fixate on infidelity even though, in my experience, it is not the most common basis for divorce. When adultery does occur, it usually follows other serious marital issues and is not really the reason the marriage ended. It might be just the last straw.

Issues Involving An Infidelity Clause

  • Litigation
    Any agreement that provides for two outcomes based on whether certain facts can be proven invites litigation. If a party will benefit by proving the other was adulterous, there is an incentive to go to court. Whether or not the activity occurred, if a question can be raised the accused must consider taking less than 100% of what the agreement allows to avoid possibly getting zero. This defeats the goal of simplifying the process.When a spouse or fiancé has a history of infidelity, gambling, overspending, alcohol or drug abuse, any of countless other problems that can end a marriage, that particular issue can be addressed. It might be possible to include a definition that applies to that person’s past. Any such definition is bound to be vague and invite litigation. It might address past conduct and the offender might vary the conduct to escape the definition. A divorce with a fault clause will require litigation of at least two major issues: the definition itself and whether the conduct occurred.
  • An Accidental Trap
    Some agreements put people in the awful situation of enduring a miserable relationship because of the cost of leaving. The spouse of a philanderer might choose not to leave the marriage. A cheater’s clause could force the cheater to remain in an unhealthy relationship because of the consequences of divorce.

Definitions For Infidelity Fault Provisions Can Be Difficult

If a spouse decides to include a fault provision, he or she should think carefully about the definition and ramifications. A lawyer will not have a standard definition. The spouses will have to live with the agreement and should discuss and think about it deliberately. A lawyer can write the legalese, but it’s up to the spouses to decide what goes into it.

The pain a spouse feels after discovering the other has been having explicit internet chats and exchanging racy photos is real. The fact the spouse and accomplice have never been within a hundred miles of each other does not diminish the breach of trust. There is no good way to draw lines in advance around conduct that constitutes infidelity. For some, pornography is adulterous. A definition of adultery that includes pornography must also include a definition of porn. Not even the United States Supreme Court has been able to define porn.

Even when people cheat the old-fashioned way, a definition suitable for a written agreement is difficult. “Intimate physical contact” is a common definition, sometimes supplemented with descriptions of various sexual acts. If divorce occurs, 1) a lot of money, time and stress can be spent arguing what those three words mean, and 2) whether such contact took place.

Whether the definition is limited to physical contact or made broader, a time limit must also be considered. Should a spouse be allowed to raise an incident that was resolved years ago? Keep in mind this conversation will take place either between two people about to get married or a couple with marital problems who want a postnup. Neither of those are good circumstances in which to discuss the gritty details of what will constitute infidelity.

Consider leaving out a fault provision. Marriages end for many reasons. It makes no sense to address only one. Decide what should happen if the marriage ends, regardless of fault, and put that in the agreement. In reality, no marriage ends for a single definable reason.

© Copyright Brian McNamara 2015. May be reproduced with credit to the author.