Many couples use prenuptial agreements for many different reasons.  These agreements could be used to make sure that you leave the marriage with your individual property intact or to make sure you keep ownership of your investments or business interests.  One other common use of prenuptial agreements is to punish cheating with “infidelity clauses.”  The Ventura divorce lawyers at the Law Offices of Bamieh and De Smeth explain when cheating violates a prenuptial agreement and what this might mean for your divorce case.

When Does Cheating Violate a Prenup in California?

For cheating to violate your prenuptial agreement, you must have a valid prenuptial agreement and you must have a valid infidelity clause in the agreement.  Since all divorces are no-fault divorces in California, there are typically no penalties for adultery in a regular divorce case.  Instead, it is up to the couple and their pre-arranged agreements to determine whether cheating should be punished as a violation.  Typically, this punishment comes from an infidelity clause built into a prenuptial agreement.

A prenuptial agreement is a formal contract that you and your spouse enter into before getting married.  This agreement is typically used to plan out asset division in case of a divorce.  In many prenups, a wealthy spouse will establish clearly what assets they brought to the marriage since all shared property acquired after the marriage is split 50/50 during a divorce.  By clearly setting boundaries on what property is “individual property” and what property is “community property,” wealthy spouses can protect their assets from asset division.  Prenups may also set out different property divisions other than 50/50, potentially establishing exactly how much money each spouse will get upon divorce.

In many cases, couples add adultery clauses or infidelity clauses to these agreements.  Since the asset division issues typically protect the wealthier spouse only, the other spouse may be dissatisfied by a one-sided agreement.  Many couples make up for this with a clause that says that if the wealthier spouse cheats during the marriage, they will be forced to pay additional money during asset division or they lose their claim to separate property and it will be included in the 50/50 split.  Alternatively, a prenup could have a cheating spouse may lose their 50/50 claim in favor of the wealthier spouse in case of their adultery.

For the prenup to punish adultery, both the agreement and the infidelity clause need to be legal, valid contracts.  Courts typically allow couples to agree to a variety of terms in a prenuptial agreement, including infidelity clauses.  However, the prenuptial agreement itself needs to be valid for the infidelity clause to work.

For a prenup to be valid, both spouses need to enter into the contract willingly.  If either party is physically forced or unfairly coerced into signing, the prenup should be invalid.  Moreover, both spouses must be in their right mind; singing while drunk or high should invalidate the agreement.  Spouses must also be honest and disclose fully all assets, debts, and finances that they own for the agreement to be valid – an agreement built on lies or deception is invalid.  Lastly, each party should work with a lawyer to make the prenup valid.  While this is not a requirement, it will help ensure that the prenup is valid and everyone has had their fair chance to alter the agreement.

What Cheating Conduct Violates an Infidelity Clause in California?

One of the issues involved in writing an infidelity clause into your prenuptial agreement is how you will define “cheating.”  The infidelity clause only punishes cheating or adultery that violates the specific terms it sets forth.  If the clause simply says that “adultery” would trigger the infidelity clause’s penalties, then it may have a very broad and confusing definition.

Instead, it may be better to use a specific definition.  Your attorney can help you decide exactly what conduct would count as “cheating” in your relationship.  For instance, someone who works as an actor would want exceptions for on-screen romance so that their job does not violate the agreement.  Some couples might be comfortable with romantic kisses with other people but draw the line at intercourse, while other couples might want to trigger the infidelity clause for kissing someone else.

Defining when the conduct must occur to “count” as cheating is also important.  If you and your spouse seek legal separation before you are divorced, you are still technically married during the separation.  You can choose to include this period or not as part of your prenup, drawing the line at the date of separation or extending the infidelity clause until the divorce is finalized.

Proving Adultery for a Prenuptial Agreement

In order to prove that your spouse violated the prenuptial agreement, not only do they actually need to violate the specific terms of the agreement, but you need to be able to prove that they cheated.  In many cases, this can be difficult unless your spouse or their lover admits to the affair or you actually catch them in the act.  The specific terms of your agreement may dictate what constitutes enough proof of their cheating, potentially including flirtatious text messages or sexting as a violation.  This is often simpler to prove, since text messages would be strong evidence you can show a court.  Otherwise, you may need to hire a private investigator to gather evidence of infidelity.

Call Our Ventura Prenuptial Agreement Lawyers for Help with Your Case

If you are getting married and want to form a prenuptial agreement with an anti-cheating clause, contact the Law Offices of Bamieh and De Smeth today at (805) 643-5555.  Our Ventura family law attorneys can help you create or enforce a prenup with an infidelity clause or help you write a prenuptial agreement or postnuptial agreement to punish cheating in your relationship.  Call our law offices today for a free legal consultation on your case.