While there is technically nothing stopping couples from including a cheating clause in a prenup, there is a chance that California courts won’t uphold them. This is because California is a no-fault divorce state. 

So, what does this mean?

Essentially, a no-fault divorce doctrine means that the judge can’t use the reason for the divorce to determine how assets are divided. In other words, acts like adultery or infidelity aren’t considered in the divorce process. Instead, the grounds for divorce are usually a result of irreconcilable differences.  

Basically, if you decide to get a divorce because your partner breaks the infidelity clause in your prenup, the court may not enforce the stipulations in that clause. This includes any restitution or asset divisions. In fact, if the cheating clause is seen as egregious, it might even invalidate the entire prenup. Let’s discuss why this can happen and how California treats an infidelity clause in a prenup.

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How No-Fault Divorce Affects the Enforcement of a Cheating Clause in a Prenup

The enforceability of a cheating or infidelity clause in a prenuptial agreement is complex. These clauses, often referred to as “lifestyle clauses,” usually impose financial penalties on a spouse who commits adultery or some otherwise unaccepted behavior. Since this directly goes against the idea of a no-fault divorce, courts in California heavily scrutinize any lifestyle clause in a prenup.

For example, in order for a prenup to be enforceable in California, the terms must be “fair” and “reasonable.” It’s possible that a judge may view an infidelity clause in a prenup as unreasonable because it goes against the idea of a no-fault divorce. As such, they may disregard the clause during divorce proceedings. At worst, they may void the prenup altogether just because it has a cheating clause.

Related: What Clauses Are Most Important to Include in My Prenup?

The main reason for this is because California Family Code § 2335 states that evidence of infidelity or other misconduct during the marriage is inadmissible in most circumstances. This was actually cited in the 2002 case Diosdado v. Diosdado. In this case, the plaintiff and the defendant had a cheating clause in a prenup that ordered the cheating spouse to pay $50,000 in damages to the other. However, the Court of Appeals threw out the entire agreement because it was contrary to California’s no-fault divorce laws. This set a precedent that makes it nearly impossible to enforce any type of lifestyle clause in a California prenup.

Does Cheating Void a Prenup?

While having a cheating clause in a prenup can void it, cheating doesn’t necessarily void a prenup. In other words, if you have a prenup that doesn’t have a cheating clause and your spouse has an affair, your prenup may still be valid in California. However, to be sure that you have a valid prenup, we recommend working with an experienced prenup attorney.

Secure Your Future—Talk to a Prenup Attorney in California Today

Navigating the nuances of prenuptial agreements in California can be confusing. At Cyrus Pacific Law, we know the ins and outs of making a prenup that addresses all of your needs. We’re dedicated to ensuring your prenup aligns with your goals, providing peace of mind for both you and your partner. Let us help you build a strong foundation for your marriage. Reach out to Cyrus Pacific Law today for a free prenup consultation.

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