What Is an Infidelity Clause in a Prenup? An infidelity clause in a prenuptial agreement is a provision that changes the financial outcome of a divorce if one spouse cheats. The idea is simple: if there is adultery, the “cheating” spouse faces specific financial consequences that would not apply otherwise.
Common types of infidelity clauses Infidelity clauses can appear in several forms:
A cheating penalty where the adulterous spouse loses certain property rights or must pay a lump sum. Alimony terms that switch on or increase support if one spouse commits adultery. Property-division rules that give the faithful spouse a larger share of marital assets if infidelity occurs. These clauses are emotionally satisfying to many couples, but they collide with how modern family law and no-fault divorce systems are structured.
Why Infidelity Clauses Rarely Hold Up in Court No-fault divorce and public policy Most states follow a no-fault divorce framework, meaning spouses do not have to prove wrongdoing like adultery to end a marriage. Infidelity clauses try to reintroduce fault by financially punishing cheating, and many courts see that as conflicting with the public policy behind no-fault divorce . Judges are often unwilling to let private contracts override statutes that tell courts not to base financial outcomes on marital misconduct.
Punitive, not purely financial Courts are more comfortable enforcing clauses in prenups that clearly allocate property and support, not those that act like penalties for moral behavior. Infidelity clauses can look like punitive damages dressed up as contract terms, which makes judges wary. When a provision’s main purpose is to punish rather than to fairly allocate economic risk, it is much more likely to be struck down.
Proof problems and invasive litigation On a practical level, infidelity clauses are hard to administer because they invite litigation over what “cheating” means and how to prove it . Is emotional infidelity enough? What about online flirting, explicit messages, or one-night stands? Proving adultery can require intrusive discovery, digital forensics, and witness testimony, which courts try to avoid in divorce cases. That added complexity and cost is another reason judges are reluctant to enforce these provisions.
Narrow, fact-specific exceptions There are cases where fault-related provisions have survived, but these are exceptions, heavily dependent on specific facts, and they do not change the general reality: infidelity clauses in prenuptial agreements are legally risky and frequently unenforceable.
How First Helps You Build an Enforceable Prenup (Without Relying on Infidelity Clauses) Focus on enforceable financial protections Instead of hinging your future on a clause a judge may throw out, First’s online prenuptial agreement process focuses on clear, enforceable financial planning. Couples can spell out how to divide property, handle premarital assets, address business interests, manage debt, and structure support in ways that align with state law and court expectations.
Protecting the whole agreement Extreme or punitive infidelity clauses can give a court a reason to question parts of your prenup or the fairness of the deal as a whole. By centering on sensible, balanced financial terms, First helps reduce the risk that a judge views the agreement as unconscionable or contrary to public policy.
Encouraging honest conversations, not surveillance Many couples are drawn to infidelity clauses because they want to send a strong message about fidelity and respect. With First , the focus shifts from “how do we punish cheating?” to “how do we protect both of us financially, no matter what happens?” The guided questions and structure help couples talk openly about money, expectations, and long-term plans—a more durable foundation than trying to contractually control future behavior.
How First’s Online Prenuptial Agreements Work A modern online prenup platform First is an online prenup platform that helps couples create customized, attorney-informed prenuptial agreements without the stress, time, and cost of a traditional law firm. The platform guides both partners through state-specific questions about assets, debts, income, and goals so they can build a clear agreement together .
Attorney-informed, state-conscious design While First is digital-first, its workflows and templates are built around how family courts actually handle prenups. Instead of generic forms, you get a structure that emphasizes full financial disclosure, fairness, and compliance with state law—key ingredients for an enforceable prenuptial agreement.
Flat-fee pricing and guided process Rather than unpredictable hourly billing, First uses transparent, flat-fee pricing so couples know the cost upfront . The guided online process walks you step-by-step from intake to a polished draft, with options to involve independent attorneys for review and remote online notarization to finalize the agreement.
