By Isabel Ranney and Mallory Scott

As the rate of divorces in the United States continues to grow, more couples are getting prenuptial agreements to protect their assets before their marriage even begins [1]. Although prenuptial agreements tend to be focused primarily on addressing financial concerns, some parties choose to include an “infidelity clause” and other clauses focused more on regulating the terms of the marriage and outlining financial penalties if either spouse fails to comply with the terms.

A primary reason why parties are including additional provisions in their prenuptial agreements is because most states, including Arizona, are “no-fault” states. Meaning, events that previously served as grounds for terminating a marriage such as substance abuse and adultery do not come with penalties. For example, in prior “fault” states, an innocent spouse would be entitled to a larger monetary award if their spouse cheated on them. Now, all that matters is that the marriage is “irretrievably broken.”

The so-called “infidelity clause” often focuses on addressing situations where one spouse cheats on the other. If that occurs, the clause provides that the innocent party will be entitled to a divorce and the cheating party will have to pay a monetary penalty. Other examples of these “lifestyle additions” to otherwise standard prenuptial agreements may include stipulations that one party may not gain weight, use substances, or spend money above a certain threshold during the parties’ marriage [2]. It is important to note that the concept of an “infidelity clause” in a prenuptial agreement is often misunderstood. This clause does not guarantee an immediate divorce and a large payout for the offended party in the event of infidelity. Rather, this provision is one of several stipulations addressed in a comprehensive prenuptial agreement, outlining the financial consequences if one party is not faithful to the other during the duration of their marriage.

Typical prenuptial agreements include outlines of the personal property and financial assets of each spouse at the time of marriage, as well as provisions for how this may be divided between spouses in the event of a divorce (who gets the house, how much spousal maintenance will be paid, if any, etc). The infidelity clause is a discretionary provision that only goes into effect if infidelity occurs; this definition may vary by couple, and as such, must be specifically defined in a prenuptial agreement that conditions a significant amount of funds on its occurrence. Another important note is that child support cannot be contracted for in a prenuptial agreement, only the spousal maintenance to be paid in consideration of the length of marriage, standard of living for the parties during this time, and the receiving spouse’s ability to support themselves/uphold this standard.

Before getting a prenuptial agreement, it is important for both parties to carefully consider their priorities and how they will be best served by such an agreement. The primary goal of obtaining a prenuptial agreement should be to provide financial security, peace of mind, and minimize the impacts of divorce on a person’s earned assets. If the infidelity provision is part of a comprehensive asset division in the event of a divorce, it may be a reasonable concern but should never be the only consideration included in a prenuptial agreement.

[1] Prenups Aren’t Just for the Wealthy Anymore – Newsweek

[2] The Infamous Infidelity Clause – HelloPrenup

[3] Read the Arizona statues regarding prenup formation and enforcement starting here: Arizona Revised Statutes § 25-202 (2023) – Enforcement of premarital agreements; exception :: 2023 Arizona Revised Statutes :: US Codes and Statutes :: US Law :: Justia

Isabel Ranney is an associate attorney at Woodnick Law and is licensed to practice in the state of Arizona. Prior to becoming an attorney, Isabel was a law clerk at Woodnick Law for nearly three years. 

Mallory Scott is a 3L at the Sandra Day O’Connor College of Law at Arizona State University, and law clerk at Woodnick Law PLLC. While working as a clerk during the summer, she has the opportunity to work on real-world litigation, but also research topics of interest relating to the future practice of law. The practice values exploration into collateral topics that relate to families, especially their relevance to popular culture and media.