Can an ‘Infidelity’ Postnuptial Agreement Truly Prevent Cheating?

Experts provide insights on the effectiveness of using postnuptial agreements as a tool to rebuild trust after infidelity.

When a spouse has been unfaithful, couples face one of the toughest challenges in marriage: reconciliation and trust restoration.

One approach sometimes considered is having the unfaithful partner sign an “infidelity postnuptial agreement.”

This agreement typically involves the cheating spouse agreeing to pay a predetermined financial penalty or provide another valuable asset if infidelity occurs again. Known as “lifestyle clauses,” these agreements are drafted by family law professionals and involve complex legal considerations before implementation.

Here’s a comprehensive overview of what you should understand about these agreements.

Why Couples Opt for Infidelity Postnuptial Agreements

Jacqueline Newman, a divorce attorney based in Manhattan, explains that such agreements often arise after infidelity has occurred. The unfaithful spouse uses the agreement to demonstrate remorse and a commitment to change by legally committing to consequences if they stray again.

However, Newman warns that overcommitting in these agreements to secure reconciliation can backfire, as the betrayed spouse might exploit the agreement to pursue divorce immediately after signing.

Despite skepticism, Newman acknowledges that postnuptial agreements can sometimes help couples move forward by showing tangible commitment, which may be enough to rebuild their relationship. She notes that while less common than prenuptial agreements, postnuptial agreements are still regularly handled in her practice.

Legal Perspectives on Infidelity Clauses

Andrew G. Vaughn, attorney and law professor, highlights that lifestyle clauses are most prevalent among high-profile clients such as celebrities. Vaughn asserts these agreements often fail to deter wealthy individuals since financial penalties may not be a sufficient deterrent for affluent would-be cheaters. He advises caution and notes the difficulty in drafting enforceable contracts of this nature.

Family law attorney Brandy Austin from Arlington, Texas, observes that infidelity deterrent postnuptial agreements are rare among middle and upper-middle-class clients and are mostly favored by celebrities and public figures. She agrees that financial penalties rarely prevent cheating, especially for those who can afford payouts, and adds that some states, like Texas, may consider infidelity when dividing marital assets under specific circumstances.

Conversely, Randall M. Kessler, a family law attorney and professor in Atlanta, reports increased use of such agreements in his practice. He believes they are enforceable in most states (except Ohio) and can encourage couples to negotiate divorce settlements rather than face court enforcement. Kessler recommends these agreements in situations where spouses want to address conflict without immediate divorce but advises careful consideration due to potential emotional escalation.

Jeffrey A. Landers, financial expert and author, explains that lifestyle clauses often address non-financial marital expectations, such as household responsibilities and vacation plans, with infidelity clauses being the most common. Landers notes these agreements are becoming more mainstream beyond celebrity circles.

Negotiating Infidelity Agreements

Discussing and negotiating lifestyle clauses can open communication channels between spouses, clarifying expectations regarding fidelity and potentially strengthening the marriage. Even if the clauses are never enforced, the process itself can be beneficial.

Key considerations include the attitude of the unfaithful partner: willingness to sign the agreement can signal commitment to change, whereas reluctance may indicate ongoing risks of infidelity.

Important Considerations

Whether or not infidelity lifestyle clauses are enforceable, contemplating and discussing them can be advantageous. Properly crafted agreements can deter cheating and other harmful behaviors. They can also help maintain confidentiality during divorce proceedings if future issues arise.

Experts recommend consulting a marriage counselor before pursuing a postnuptial infidelity agreement to explore all options for healing and reconciliation.

Explore more about relationship counseling and maintaining healthy partnerships.

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