If your spouse has cheated on you, and you are attempting to reconcile and rebuild trust, you will face one of the most difficult challenges a married couple can experience. One strategy that is sometimes used to dissuade further infidelity is to have the unfaithful spouse sign an “infidelity post-nuptial agreement,” consenting to some specified financial payment (or another significant item of value) to be paid if they cheat again.
Such agreements, also known as “lifestyle clauses” can be drafted by family law attorneys.
Manhattan-based divorce lawyer Jacqueline Newman explains the typical underlying reasons for post-nuptial agreements: they are “often done after there has been some element of infidelity in the marriage. The person who has strayed tries to assure his/her spouse that it will not happen again and to prove the sincerity of this promise, he commits to putting pen to paper to show how sorry he is.” She cautions against these agreements because, “If you over-commit in the document just to get that second chance, you take the risk that your spouse will wait just until the ink is dry to call his/her divorce attorney now that they know they are going to get a good deal.”
Ms. Newman believes that sometimes postnups may be what is needed for the couple to move forward. “In a less skeptical tone, they can sometimes work because if a spouse does believe that their straying spouse was willing to in essence ‘pay’ for his/her sins, it shows that they are committed, and that may be all that is needed to get the couple back on track.” She notes, “Post-nuptial agreements are much less common than prenuptial agreements, but we definitely have our fair share of them in my office."
"A money deterrent usually isn't enough to stop a wealthy would-be cheater." ~ Andrew G. Vaughn, attorney and professor
Andrew G. Vaughn, attorney, owner of NuVorce, and Professor of Domestic Relations Law at Loyola University Chicago School of Law says that these lifestyle clauses are most common with celebrity clients.
Professor Vaughn states, “They don't work. Wealthy people have a lot of money. A money deterrent usually isn't enough to stop a wealthy would-be cheater.” He does not recommend them and notes that they are relatively uncommon. In fact, he asserts that it is rather complicated to draft highly enforceable contracts like these.
Brandy Austin, an Arlington Texas-based family law attorney, believes postnups to deter infidelity “are actually relatively rare among lower middle to lower upper-class people. They are more for celebrities, public figures…politicians.” But, in her experience as well, these agreements in any form are not very common. “If it is included as a deterrent, the likelihood of someone cheating agreeing to give all of their assets is poor.” Ms. Austin also believes that these agreements aren’t as effective with the wealthy. “If you are already in a position to make a payout, money doesn't hold the same value and will not likely deter infidelity.”
Most states are “no-fault” in terms of divorce, but in her state of Texas, courts may award a disproportionate amount of the estate in some instances of infidelity based upon the “spending the community estate on someone other than your spouse or kids - wasting community property.” Says Ms.
On the other hand, Randall M. Kessler, family law attorney, author, and law school professor in Atlanta, reports seeing these agreements often in his practice, and believes that they are becoming more commonplace. “Not just when a spouse misbehaves, but also when a relative wants to give a spouse property but does not like the other spouse so it ‘keeps the gift in the family.'” He believes they do work, and they are “enforceable in every state except Ohio and what they do, is to cause people to negotiate their divorce. Why go to court and risk having a postnuptial agreement enforced against you if you can negotiate a little more than is required under the postnup?” He even has recommended them, for example, “When someone is mad at their spouse, but does not want a divorce.” He cautions, however, “just like any family law case, think long and hard about it because once the subject is raised or lawyers get involved, feelings get hardened and it often spirals into a full-blown divorce.”
Jeffrey A. Landers, CDFA™, the creator of the Think Financially, Not Emotionally® brand of books and seminars designed to educate, empower and support women before, during and after divorce has written on this topic on Forbes online. He explains, “Lifestyle clauses address non-financial aspects of the marriage, like who will do the housework, the frequency of vacations…” They are “generally seen as guidelines for behavior within the marriage, and although they aren’t focused on assets, per se, there are usually financial penalties for failure to comply with the terms.” He states that clauses involving infidelity are the most common and popular of such lifestyle clauses. According to Mr. Landers, they are not just for celebs anymore, either.
According to Pennsylvania family law attorney, Jeffrey Kash, this topic does not come up often in his practice, but these agreements are enforceable in his state. He does recommended clients “push for agreements that penalize infidelity and for other concessions in cases where a spouse has engaged in marital misconduct and wants to stay in the marriage.” He advises pursuing these concessions “while the other spouse is feeling guilty” which helps the betrayed partner before the blame game and fighting starts. “Don’t just limit these types of agreements to infidelity with members of the opposite sex.” he also suggests.
Mr. Kash describes a case that he handled several years ago, in which the husband reconciled with his wife after the wife had an affair. As a condition of the reconciliation process, the husband requested that the wife sign a “post-nuptial agreement that would limit her marital property rights in the event that she subsequently became involved in another extramarital affair.” You can guess what happened next. Wife cheats again and the postnuptial, under which the wife had waived her right to marital property, was upheld.
As a couples’ therapist, whether lifestyle clauses for infidelity are enforceable, or whether they are utilized by a couple or not, talking and thinking about them can be beneficial.
If they are properly negotiated and can be upheld, they can certainly be structured to deter cheating and other bad acts. They can also be used where both parties want divorce proceedings to be kept confidential in the event of future bad behavior. All of the experts have made good points to consider whether or not this might be a good option for your marriage.
The process of negotiating “lifestyle clauses” may open up the lines of communication between spouses, and help the marriage in unforeseen ways. These clauses might encourage people in a committed relationship to discuss fidelity issues and expectations in advance. Feelings about monogamy and infidelity will be made clear. Such communication alone can be helpful, even if the clause is never enforced.
What couples considering lifestyle clauses should really focus on is the attitude of the one who cheated. If the partner who strayed seems more than willing to do anything to save the marriage, including signing a postnup, that can be viewed as a positive step forward. Alternatively, if the betrayed partner has to cajole their unfaithful spouse into such an agreement, that is probably a strong indication that the cheating behavior isn’t likely to change.