How to Word a Marriage Contract Regarding Infidelity

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The infidelity of celebrities continues to be the subject of prime time news shows, cover stories for magazines and conversation on social media, including the cost of the infidelity when the couple has a prenuptial agreement. It could make you wonder whether you need a marriage contract with an infidelity clause. An infidelity clause can be the wrong step, however, if neither party has a history of straying, states Barry Finkel, an attorney cited in the Huffington Post.

Specific Wording

If you do include an infidelity clause, you should be specific about what constitutes infidelity to the two of you, Finkel suggests. For some couples, that could include mouth kissing, sending sexy pictures, oral sex, sexting, contacting an old boyfriend or girlfriend on social media, forming a deep emotional bond or even holding hands, according to a May 2013 study published in “Evolutionary Psychology.” With such a wide range of possible activities that your mate could object to, it is best to know what your mate forbids.


Many celebrity couples include an infidelity clause in prenuptial and postnuptial contracts and include specifics about the penalty, such as a financial pay out, a larger share of property or an automatic filing for divorce. If your estate doesn’t have a hefty financial amount to haggle over, you could have little incentive to include infidelity in the contract, except as an automatic out of the marriage. “Savage Love” columnist and married gay partner Dan Savage counsels that ending the marriage because of infidelity might not be the best option -- allowing infidelity could save your marriage and keep you sane. Consider what kind of penalty is acceptable and how likely the court is to uphold it.

Open Relationships

Some couples could take a different approach to infidelity by outlining the conditions under which infidelity is acceptable -- such as with the consent of both spouses -- when both partners know the third party or when one party decides that sex is no longer a part of the marital relationship. Savage says that such arrangements make more sense than divorce, especially when kids are involved. He says that monogamy might not be practical for all couples and that being honest about a desire to have sex with someone outside the relationship could give both partners a way to meet their needs without the pain of betrayal and secrecy.

Other Considerations

Including an infidelity clause when there is no history of infidelity could cause problems in the relationship through resentment and mistrust, Finkel says. If, however, there is a history of cheating, an infidelity clause with a hefty penalty could discourage the spouse from cheating again -- or it could just make the cheating spouse more careful about hiding it. If the spouse is a sex addict or becomes engaged in an emotional relationship outside the marriage, an infidelity clause might not prevent cheating, especially if your definitions of cheating include more than sexual activities.