No one starts a marriage with the intention of being unfaithful or expects their spouse to be untrustworthy in matters of fidelity. Unfortunately, infidelity is a leading cause of divorces in California. This is why many couples are considering the option of an infidelity clause prenup in California.
Prenuptial agreements may cover various terms and conditions, from finances to spouses’ personal rights. While most prenuptial agreements address the financial aspects of a divorce, it is also worth considering adultery.
Keep reading as we cover the ways spouses may protect themselves during a divorce.
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Infidelity Clause Prenup California
Prenuptial agreements may contain provisions known as “infidelity clauses,” which penalize unfaithful parties if they cheat during the marriage. States have different laws governing the enforceability of infidelity clauses in prenuptial agreements, and some may not uphold them.
Prenuptial agreements with infidelity clauses that specify monetary fines or other repercussions for cheating serve to deter infidelity and provide peace of mind to both you and your spouse. Some states reject infidelity provisions including California because of no-fault laws.
Typical terms in infidelity clauses include financial penalties, such as higher alimony or asset division for the non-cheating spouse or property adjustments. However, such clauses in a California prenup might be deemed unconscionable and likely lead to voiding the prenup. This is why it is imperative to have the best prenup lawyer who may ensure your agreement is valid so you are protected.
Can you add a cheating clause to California prenup?
Prenuptial agreements can include many elements, and while you may add an infidelity clause, you risk the prenup’s validity. According to California Family Code § 1611, both of you write and sign a prenup.
It will be enforceable without consideration, and as per Family Code § 1612, it may contain terms about finances and obligations. You may even add “lifestyle clauses,” which pertain to how you and your spouse are supposed to behave during the marriage.
One example of a lifestyle clause is an infidelity clause. o-fault states including California, do not look favorably on them. You can include an infidelity clause in your prenuptial agreement, but in the case of a divorce, the court may deem the entire prenuptial agreement invalid.
Are infidelity clauses enforceable in California?
The answer is no. You or your spouse may not list infidelity as a cause for divorce or to get compensation for cheating. In California, neither party needs to provide fault for seeking a divorce; the one seeking divorce only needs to declare irreconcilable differences.
As either party may seek divorce without needing to provide a reason for doing so, it also means they cannot seek retribution due to infidelity. Lifestyle clauses typically impose financial penalties on the cheating spouse.
Such penalties directly go against the idea of no-fault divorce. This is in accordance with California Family Code § 2335, which states that evidence of misconduct like adultery is inadmissible in most circumstances.
Executing a marital agreement must be in accordance with the state’s no-fault system. If you decide to include an infidelity clause in your prenup, you should keep in mind the court may not enforce its stipulations. If the judge deems the adultery clause egregious, they may void the entire agreement.
Infidelity Clause California Prenup Rules and Limitations
To ensure your prenuptial agreement is valid and enforceable in California, its terms must be “fair and reasonable.” The Uniform Premarital Agreement Act (UPAA) governs California’s prenuptial agreements.
The UPAA, as a statute, defines the form of a legally binding prenup and specifies the topics you are allowed and prohibited from including in the contract. In your marital agreement, you and your future spouse may consist of the following:
- How you will divide separate and marital property and assets after a divorce
- How you will divide debts.
- Terms surrounding spousal support (alimony).
- Making a will, trust, or other arrangements.
- Ownership rights and disposition of death benefit from life insurance.
Beyond these, a prenuptial agreement cannot contain stipulations regarding child custody, support, and rights. The court will not enforce your prenup if it includes such stipulations.
Another unenforceable aspect of a prenup is unconscionable terms or conditions. For instance, if one of the spouses was a stay-at-home parent and may be left destitute if they sign an alimony waiver, it is an unconscionable contract.
California’s no-fault divorce system
Due to the state’s community property laws, premarital agreements might provide more control over assets and financial security for Californian couples. In other words, all assets and debts obtained during the marriage might be divided equally, while preexisting assets and debts remain separate.
Without a prenup during a divorce, the courts may apply these laws to determine assets and debt division. Courts do not consider fault (e.g., infidelity) when dividing assets or awarding spousal support.
A prenup allows you to circumvent the 50/50 split by adding a clause that designates explicitly that all assets earned remain separate property, even during the marriage.
General requirements for prenups in California
To protect yourself and ensure your prenup is enforceable and valid, it is best to get the help of an expert premarital agreement lawyer at Moore Family Law Group. We can ensure that the prenup is under the legal requirements in California. Your agreement must follow these legal requirements to be legally valid:
- Must be in writing – Your prenup must be in written form, and if you want to add more validity, you may also notarize it.
- Voluntarily signed by both parties – You and your future spouse must sign the agreement voluntarily without coercion. If the court deems one party signed under coercion, the prenup will be deemed void.
- Full disclosure of assets and debts – You must fully disclose your assets, liabilities, and debts during the negotiations and drafting of the prenup.
- Fair for both parties – The agreement must be fair and understandable for both spouses. If the prenup is unfair to one party and signed involuntarily, the court will likely decide not to enforce it.
- It cannot include terms that violate public policy. You aren’t allowed to include any terms that violate the legal requirements, and both of you must also have 7 days to review with legal counsel before signing the agreement.
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Pros and Cons of Including a Prenup Infidelity Clause California
Pros
- May provide emotional security
- Encourages transparency and trust in the relationship
- Serves as a deterrent against infidelity
- Preventative measures for both parties
Cons
- It may not be legally enforceable
- Could complicate divorce proceedings
Conclusion
An infidelity clause prenup California may not be a legally enforceable stipulation. This is because California is a no-fault state, and holding a spouse accountable for adultery goes against its fundamentals. Yet, a prenup may be a way to protect yourself in the case of infidelity, when executed correctly. If you require assistance, contact us and one of our experts will help guide you and ensure you are protected.