Prenuptial agreement lawyers commonly help couples planning to marry by adding certain clauses to their prenup. One aspect of these agreements that has gained attention in recent years is the prenup infidelity clause. This clause, also known as a “no-cheating” clause, sets forth the consequences if one partner is unfaithful during the marriage. In Texas, these clauses are becoming increasingly prevalent.

Prenup Infidelity Clause Overview

An infidelity clause can serve as a form of protection for one’s interests in a marriage. If a spouse is unfaithful, the infidelity clause can have significant implications for the division of assets in a divorce. It’s a tool that can provide peace of mind for the concerned party.

Understanding Infidelity Clauses

prenup infidelity clauseAn infidelity clause is a provision in a prenuptial agreement that establishes penalties if one partner is unfaithful during the marriage. The enforcement of such clauses can be complex and varies by state. In Texas, the enforceability of these no-cheating clauses is determined on a case-by-case basis, considering factors such as the fairness of the clause at the time of execution and the circumstances surrounding the infidelity.

What Does the Texas Family Code Say About Cheating in Marriage?

The Texas Family Code does not mention the word cheating, but it does discuss adultery.

Texas Family Code Sec. 6.003. ADULTERY. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

Texas Case Law defines the meaning of “adultery” as: “The word `adultery,’ as used in divorce proceedings, means voluntary sexual intercourse of a married person with one not the husband or wife of the offender. 19 C. J. p. 42, § 75.” [page 685]. Franzetti v. Franzetti, 120 S.W.2d 123 (1938)

But, in the context of an infidelity clause, or no-cheating clause, we will see that it is extremely important for the prenuptial agreement to clearly define what “cheating” is.

Are Infidelity Clauses Legal In Texas?

The Texas Family Code does not explicitly address infidelity clauses. However, Texas courts will take just about any term of the premarital agreement on a case-by-case basis, assuming the agreement is not illegal or against social policy. It’s possible that an “illegal” prenup could get thrown out in court so it’s important to consult with an attorney.

Attorney Lisa Bustos on Cheating Clauses in Texas Prenups

Texas Prenup Cheating Clause Video Summary

Yes! You can have a cheating clause in your Texas Premarital Agreement. Generally speaking, Texas prenuptial agreements list a set of definitions explaining the various meanings of certain terms in the agreement. So if your prenuptial agreement includes a cheating clause, then the definition section should CLEARLY define what exactly “cheating” means inside of your marriage. Any grey areas in this “cheating,” or “infidelity” definition leaves a TON of room for divorce lawyers to litigate (argue) during your divorce proceedings. And the entire point of a prenup is to avoid costly litigation.

The Pros and Cons of Infidelity Clauses

Infidelity clauses can provide a sense of security for the party seeking the clause, and can also serve as a deterrent against infidelity. However, these clauses can also be seen as setting a marriage up for failure by not trusting the other party. It’s important for couples to discuss these implications and come to a mutual understanding before including such a clause in their prenuptial agreement.

Drafting an Infidelity Clause

When drafting an infidelity clause, it’s important to consider the specific terms of the clause, such as what constitutes infidelity and the consequences of a breach. It’s also crucial to ensure that the clause is fair and not punitive in nature. A prenuptial agreement lawyer (see can provide valuable guidance in this process.

Infidelity Clause Example

An example of an infidelity clause in a prenup could be that the Agreement stipulates that if one spouse cheats, then that spouse must pay a penalty. Meaning if say, the wife cheats, then the husband gets $400,000.

Can Infidelity Void a Prenup?

Instead of some kind of monetary penalty, it is possibly that the marrying couple could setup their “Infidelity Clause” to mean that if one of the spouse cheats, then the prenup is voided, or a certain clause in the prenup is voided.

Additionally, spouse might agree on Alimony terms in the prenup, but then also use a no-cheating clause to void alimony in the prenup.

Lawyer Who Writes Prenups in Texas

Understanding infidelity clauses in prenuptial agreements is crucial for couples considering this option. While these clauses can provide a sense of security, they also come with potential drawbacks. It’s important to consult with a family law attorney to discuss whether an infidelity clause is right for your situation.