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Should I Ask for an Infidelity Clause in My Prenup?

If you're planning to remarry and your first Pasadena divorce was caused by infidelity, a prenup clause punishing extramarital affairs might sound like a great idea. Unfortunately, there are a few reasons to think twice before adding this type of language into your prenup.

Generally, an infidelity clause gives the aggrieved spouse a financial award from the cheating spouse if there is an extramarital affair that results in the divorce. This might be an increase in spousal support, a lump sum payout, or a larger portion of the marital assets.

Celebrities, because of their high profile love lives and potential for multimillion dollar divorce settlements, are often rumored to have infidelity clauses in their prenups. Catharine Zeta-Jones was said to have an infidelity clause in her prenup with Michael Douglas due to evidence he cheated on his first wife. When Tiger Woods was attempting to reconcile with ex-wife Elin Nordegren, she wanted a prenup and infidelity clause with a $350 million financial penalty to keep him from straying again.

Aside from the obvious issue of breeding suspicion in a relationship, there is the problem of defining and proving infidelity. Does kissing count as cheating or must the infidelity include sexual intercourse? What lengths will you go to in order to prove an affair? What is the penalty for making false accusations?

If your divorce occurs in a California court, a prenup with an infidelity clause may not be enforced. California judges have typically ruled against these lifestyle clauses on the grounds that they run contrary to the spirit of the public policy that underlies no-fault divorces in the state. In one case, Diosdado v. Diosdado (2002), a liquidated damages clause of $50,000 by the unfaithful party was found to have made the entire agreement unenforceable. Any infidelity clause with a payout large enough to "threaten to induce the destruction of a marriage that might otherwise endure" is likely to be suspect.

How Can We Help?

Please call our office at (626) 683-8113 or email us at info@PasadenaLawOffice.com if you have a question about drafting a prenup. As one of the most prominent family law firms in Pasadena, we are eager to assist you in creating a document that will protect your best interests.

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