Love is Blind: Infidelity Clause

by | Mar 7, 2024 | Prenuptial/Postnuptial Agreements

*Spoiler Alert* – Love is Blind is what everyone’s talking about and there is no question as to why that is. From Jimmy not knowing about whether to choose Jessica or Chelsea, to what Jeramy really did with Sarah Ann that night after Lost and Found; it’s been an interesting season to say the least.

But what has really caught my attention is the ongoing conversation that Clay Gravensande has repeatedly held with Amber Desiree Smith (also known as “AD”) with respect to Clay’s father’s past. Throughout the season, Clay argues that because his father continuously cheated on his mother, his father’s conduct is what ultimately led to the divorce of his parents after being together over twenty-five years. He admits that his father’s conduct and the divorce between his parents affected him. For this reason, he finds the idea of marriage difficult and something he might not be able to do because he is scared to make the same mistakes his father once made.

Ultimately, Clay’s fears got the best of him, and he denied AD at the altar. However, at the reunion, Clay confessed his love to AD, and how he still wanted a chance with her, but as expected she is now reluctant to give him a chance.

A possible solution for the issues that they are facing if AD and Clay were to get married, is that they could sign a prenuptial agreement wherein they could include an “infidelity clause”. This clause could provide further incentives for Clay not to cheat during the marriage, but depending on their agreement it could also give AD compensation if Clay was to cheat in the marriage, and as such give Clay another chance.

A typical prenuptial or premarital agreement is made between a married couple such that in case of a divorce, the couple would know how to distribute their assets and debts. However, there are other clauses that can be inserted in these agreements that have nothing to do with property but rather deal with lifestyle clauses, such as an infidelity clause.

An “Infidelity Clause”, also known as the cheating clause, is a provision that can be asserted in a prenuptial agreement that attempts to prevent or defer a person in the marriage from being unfaithful. The clause can establish penalties to the spouse that has been unfaithful in the marriage. This clause has become popular among celebrities; it is alleged that Angelina Jolie and Brad Pitt had an infidelity clause in their prenuptial agreement which stated that if Brad cheated, Anjelina would get full custody of their six (6) children.

While an infidelity clause is something that every couple can consider having in their prenuptial agreement, there is a catch. The infidelity clause unfortunately can only be enforced in certain states depending on if the state is a no-fault state or a fault state.

A “no fault” divorce state means that no one must prove that the other did something wrong in order for a Judge to grant a divorce. This also means that even if a spouse was proven unfaithful during the marriage, the court cannot not consider infidelity as grounds for divorce, nor can this fact impact the result. Usually, a court will not enforce an infidelity clause in a prenuptial agreement in a “no fault” divorce state, which we are here in California.

On the other hand, infidelity clauses can be enforced in a “fault” divorce state. This means that in a divorce proceeding, infidelity can be the grounds for the divorce. Examples of “fault” divorce states, among others, include Pennsylvania and Tennessee.

In the end, it’s hard to tell if an infidelity clause would be able to save the relationship of AD and Clay. However, it could potentially be a possibility since this could eliminate the issues that the couple has faced since the very beginning. If you are interested in your own prenuptial agreement or are curious what outside the box or creative clauses could be upheld here in California, contact Butler Law, PC today!