Can We Include a “No Cheating” Clause in our Prenuptial Agreement?

Written by on February 2, 2021 in Uncategorized

We try so hard avoid celebrity gossip.  We really, really do.  However, whenever there’s buzz about a prominent celebrity filing for divorce (e.g., Kim Kardashian and Kanye West or Zoe Kravitz and Karl Glusman), people want to know whether the celebrities have a “no cheating clause” in their prenuptial agreement. 

For those who don’t know, a “no cheating clause” is when the parties’ prenuptial agreement says that if one spouse cheats on the other then the cheating spouse must pay a certain amount of money to their spouse (as a penalty for cheating).  The questions then are: (1) is a “no cheating clause” valid? And if so, (2) How much is your fidelity worth?  There is no reason to answer the second question because the “no cheating clause” is not valid and it will not be enforceable in Court (at least in California).

California is a no-fault divorce State.  This means that you do not need prove to a Court (or a jury) why you need a divorce.  Either spouse can file for a divorce (or legal separation) at any time and they only need to state that they are filing for a divorce (or legal separation) because of (1) Irreconcilable differences; or (2) Permanent legal incapacity to make decisions. 

When a prenuptial agreement includes a “no cheating clause” it goes against California’s no-fault divorce laws because they seek to punish (or impose a penalty) on a party who is “at fault”.  Therefore, “no cheating” clauses in prenuptial agreements are invalid and unenforceable.  We hope this puts an end to (at least this part) of the rumor mill.

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