SurvivingInfidelity.com^®

We are in the middle of creating a post nuptial agreement with an infidelity clause in it and are having trouble with the wording. We have searched google and haven't really found anything helpful. We know the "cheating" needs to be specific and also what constitutes as "proof" of cheating. Can anyone that has been through this help? Would this post be better on another board? Thanks!

I have a post nup. I specifically did not put in wording about cheating. The reason is b/c if I decide to leave 5 or 10 years after the A has ended - I want my money to be my money.

For any reason - no matter what.

I suggest your post nup be worded without specific “cause” like infidelity. Just should you split or end the M for any reason then ........

My lawyer advised me not to include anything about cheating. It's worded so that I can use it in the event of a divorce for any reason.

Having cheating/do the dishes/mow the lawn/etc clauses are one of the main reasons that pre (and post) nups are overturned or not upheld. As others have said, look at it like a contract (because that's what it is) with a business and write it as such. If this happens (D) then the following things will be mine, the other things will be yours. You can agree to an alimony payment, but don't make it ridiculous. You also can't get 100% of everything no matter what they do, so don't try, they'll throw the whole thing out. You could use a post-nup to allow for separate (outside the marriage) assets, that may be useful.

Are you the primary income earner and/or have significant non-marriage assets? If not, it's going to be difficult to word a post-nup to be "better than" a standard D settlement would be for you. If you are the primary income earner, I highly suggest you do this, the possibility of "writing out" alimony can be massively impactful.

We didn't have a cheating clause in it either...that was my H's decision. He wanted to prove to me that HE wasn't going anywhere...but he would certainly understand if I needed to end things because of his adultery. This gave me comfort and made me feel more safe with him .

Well I am utterly confused. I posted about my WH breaking no contact with COW and that is what everyone suggested I do.

Layla. Sorry for the confusion.

But different people have different experiences and outcomes.

Most of us on this post here are saying to have a post-nup is a good idea. But don’t have it tied to cheating or no contact or any specific circumstances or events.

Let me give you my reasoning and experience. My H wanted to R. At DDay2 and this being his second A I had no desire. But a month later I thought it may be possible but I wanted all the money I saved to be my money - not our $.

So my lawyer friend drew up a financial contract - it’s not a post nup. My H agreed to sign it. It states “if we D money in certain accounts is excluded from being considered marital assets”.

If R was not successful and I decided to D him AND the post nup agreement states we D b/c of cheating - I lose. If I decided to D him one year after the A ends and he is not cheating - all those accounts are marital assets. Meaning he gets half.

But in my case - I can D now (5 years later and he’s not cheating) and those assets are solely mine. 100%. All legal.

So that is where the difference is. The post nup should not say if you do this - then these assets are mine. It should be vague and say “divorce” only or “divorce for any reason”.

If he decides to D you two years from now - those assets would be split if the post nup says “divorce due to no contact or cheating” etc.

Another suggestion: split up your credit cards. I have mine and he has his. Our only joint assets are home and one bank account. I have a car in my name alone - so does he.

My children are almost adults so child support would not be an issue. The only thing we have to settle on is alimony and sell our home.

I hope this explanation helps you.

My lawyer advised me not to include anything about cheating. It's worded so that I can use it in the event of a divorce for any reason.

This seems reasonable. You don't want to have to have a specific reason for divorce. You may just wake up one morning and decide it isn't worth the effort. The post-nup is to have a pre-planned agreement for finances, custody, etc. in the event of a divorce. No reason necessary.

A post nup is a great idea. An "infidelity clause" is not. Just leave it out and keep it simple. If the marriage ends for any reason it applies. That is how mine is set up.

I think the post-nup could include both, division of marital assets that favor you no matter the reason for D but also include an infidelity clause so that you get even more from the assets or alimony, it's up to you. I just don't feel it's fair that if you or him ever decide to D for reasons not related to cheating that he be punished as such, it doesn't reflect good faith and that's why I would word it in such a manner that if you decide to D 5-10 years from now you could still get more (due to his past infidelity) from the marital assets but if it's due to future or ongoing infidelity then you get even more, keep in mind he has the option to D right now and you won't get either, if he decides to D now you'll get 50/50 regardless of the reason unless you live in in an at fault state, as to the wording ask your attorney, in the end just get a post-nup no matter what.

My attorney said that anything that seem "punitive" was likely to thrown out by a judge presiding over a D case. Any lawyer worth their salt would easily have it thrown out.

I think in the event of a D, this is how the marital assets are split, custody, etc.

I would not tie to infidelity. My lawyer also said it is near impossible to prove unless you have it on video.

Further with the new revenge porn laws in many states plus privacy/consent to monitoring laws your odds of proving infidelity in court of law are a long shot at best.

What about going through with a D now and him granting you favorable terms ? You keep up appearances, live together and if he does cheat again there is no messy D because you are already divorced. You/He simply move out.

He might not like this approach, but it give him as much incentive to work at R as post nup does. Maybe even more. You can always marry again.

My lawyer advised me not to include anything about cheating. It's worded so that I can use it in the event of a divorce for any reason.

We have a post-nup and this is what my lawyer advised as well, so it is not included. A couple of reasons that I can remember were (a) as some point you may just realize it is a deal breaker even if he never cheats again and (b) it could get very ugly as even if I have evidence, he could pull out emails to male friends and/or accuse me of doing the same, so it would turn into a "he said, she said" which would basically nullify anything in the contract.

I also included that I would never have to pay him alimony regardless of my income and that our incomes would be added together and divided equally for the same number of years that we were married. (He made 5 times more than I did and took a lowing paying job when we had kids.)

Good luck!

You should take legal advice only from qualified lawyers.

Ours says nothing about cheating.