Tristan Thompson is reported to have twice cheated on Khloe Kardashian. More recently, Maroon Five singer Adam Levine was alleged to have cheated on his wife days after his wife announced she was expecting another child.
“Infidelity” is not a friendly word in the press nor is it a friendly word for newlywed and soon-to-be-wed couples. While it is important to recognize that non-monogamous, open relationships are on the rise, a majority of Americans still report that their idea of a perfect relationship is completely monogamous.
To this point, a report from the American Psychological Association found that infidelity accounts for 20-40% of divorces across the country. While a so-called “cheating clause” may be the last thing on lovebirds’ minds before or after marriage, using these clauses in a pre or postnuptial agreement have more than just monetary benefits – they may even discourage infidelity in the first place.
What is an “Infidelity Clause”?
Infidelity clauses are couched among “lifestyle clauses” that Forbes Personal Finance has found are creeping up more and more frequently in prenuptial and postnuptial agreements. By and large, these clauses serve as “guidelines for behavior within the marriage” – and, as such, tend to address non-financial aspects of the marriage.
So while they govern behavior in the marriage rather than assets, you can attach hefty financial penalties for failure to comply with the terms. Just how hefty, you ask? It is reported that actress Jessica Biel has an “infidelity clause” in her prenuptial agreement with singer/star Justin Timberlake with a $500,000 reward for breach. Even Real Housewives Reality T.V. star Teresa Giudice had a “no cheating” mandate in her prenup with now ex-husband Joe.
Enforceability and Loyd v. Niceta.
As for many “lifestyle clauses” that are not strictly financial in nature, enforceability of infidelity clauses across the United States has always been iffy. But a recent decision to uphold a $7 million infidelity clause by the Maryland Court of Appeals could change how courts view these in prenuptial and postnuptial agreements.
The case is called Loyd v. Niceta and it went as follows: Husband and wife had been married since 2006. During their marriage, the couple was able to live well beyond their means because
(1) the husband made a good income and ;
(2) they had access to the husband’s substantial, inherited family wealth. Eight years later, the wife found out that her husband was having an affair. After a year of reconciling, the wife decided she would stay in the marriage subject to certain terms. This decision led to both spouses obtaining legal counsel to enter a postnuptial agreement.
In doing so, the husband’s priority was to keep the family together and regain his wife’s trust once again. His wife’s attorneys then drafted an initial agreement containing an “infidelity clause” that entitled her to a lump sum of $5 million if he ever cheated on her again. Per his attorney’s advice, the husband upped the ante of the payment to $7 million – an amount they both agreed upon to execute the postnup in September 2015. Some four years later, the wife found out that her husband had cheated on her again and filed for divorce seeking, among other relief, to enforce their postnup with a $7 million lump sum payment.
This case ultimately hinged on the age-old concept of contract law “consideration.” The husband tried to argue that his wife had not given up anything of value in exchange for this $7 million promise to remain faithful – so their contract was void for lack of her consideration. However, both the lower court and the Maryland Court of Appeals found the wife DID give up sufficient consideration to enforce the agreement because she agreed to stay married to him and reconcile the relationship despite his previous affair. As Judge J. Frederick Sharer wrote for the court,
“While such a[n] [infidelity] provision might create fear, it could as well create stability and peace in a marriage because the consequences of various actions in a marriage are explicitly spelled out . . . Mr. Lloyd alone was the trigger of the penalty.”
To sum it all up, the court found that, because the husband made his expensive $7 million bed, he must lie in it. A court decision like Loyd v. Niceta could mean more agreements like these are enforceable in a court of law – and finding a reputable attorney to help is key.
