I’m a divorce lawyer and this is why you should never have a cheating clause in your prenup

A divorce lawyer has revealed the two mistakes people always make with their pre-nuptial agreements – and why you should always invest in a good attorney.

James Sexton is a New York-based family lawyer and author with over 20 years of experience in the industry.

He recently went on a podcast with computer scientist Lex Fridman and discussed the intricacies of prenups, and why people should never include a fidelity or sunset clauses.

A prenup agreement is a contract drawn up by a couple before they get married. Typically it will list all the assets each person owns, including any debts, and specifies how these will be divided up in the event of a divorce. 

‘Fidelity’ clauses mean the prenup is void if one person is unfaithful, and a ‘sunset’ clause defines the time after which the terms of the agreement expire.

‘I discourage people from putting in fidelity clauses and sunset clauses,’ Mr Sexton said.

For example, some prenups usually waive alimony after a divorce – but a fidelity clause can state that the person who was wronged be paid a particular sum due to the other being unfaithful.

‘The intention is to disincentivise the person from cheating, but it just creates an interesting legal battle for lawyers.

‘How can you prove they cheated or not? What constitutes cheating? Is an emotional affair cheating? What about oral sex, and how do you prove it?’

Mr Sexton claimed that receipts like hotel bookings don’t hold up in court – because the only thing it proves is that two people were in a room together, not that they had intercourse.

On the other hand, a sunset clause might state that the prenup will expire after the couple has been married for 15 years.

‘It creates a very uncomfortable thought experiment people need to have before the contract expires,’ the lawyer said.

‘You have to ask yourself: ‘Am I so happy in this relationship that I’m willing to take all my premarital assets and throw them in the pot right now? If not, I have six months to get divorced’.’

He went on, ‘If you get married, start a company worth $100million, and under your prenup it’s your separate property. But there’s a sunset clause that says your prenup expires in 15 years. At year 14 and six months, you’ll have to ask yourself some serious questions about where the relationship is going to be in ten years.’

Many still weren’t on board with Mr Sexton’s advice.

‘You might as well not get a prenup if you’re not putting in a fidelity clause,’ a woman said.

‘It’s a red flag if the partner doesn’t want a fidelity clause!’ another wrote.

‘A lawyer once told me a clause is only as bad as the details you put in it,’ a man said.

But others thanked him for his knowledge.

‘A prenup isn’t only for infidelity but it also covers separate premarital assets, financial agreements, support if one decides to become a stay at home parent, and many other things,’ one said.