Infidelity Penalty Clause in Prenuptial Agreements, Bringing Fault Back in FL

by | Aug 18, 2015

More and more Florida couples are requesting the inclusion of an infidelity penalty clause in their prenuptial agreements. Florida is a “no fault” divorce state meaning that neither party is considered directly responsible for the end of the marriage. However, with the infidelity penalty clause contained in the prenuptial agreement, the concept of ‘fault’ returns to Florida divorce law and the partner who strays could lose everything.

Historically, fault has always been very difficult and expensive to prove in order to obtain a divorce. It is for these reasons, proof as to fault is no longer required in order to obtain a divorce. However, a couple may contract an infidelity clause within a prenuptial agreement. The infidelity penalty clause spells out what will — and won’t — be distributed to a spouse if they are unfaithful during the marriage. If the couple ends their union because one partner is unfaithful, the adulterer may lose much of their share of the benefit within a prenuptial agreement.

But what constitutes infidelity?

  • Is it intercourse?
  • Is it oral sex?
  • Is it phone sex with a paid phone sex service provider?
  • Is it sex at all? Could it be emotional infidelity?

What if there is an affair via email and text, but the two never physically meet? Couples must answer these questions when drawing up their prenuptial agreement.

Celebrities and the wealthy have been the front-runners in using infidelity penalty clauses, however, more middle-class Americans are using prenups with these clauses to protect themselves in case their partner is unfaithful. Prenups, with and without the penalty clause, are worthwhile to those who wish to protect family homes, middle-income savings, and pensions from pricey legal fees and divorce settlements sanctioned by the courts.

Prenuptial agreements are not just for the rich and famous anymore. A well-guided prenup — with or without an infidelity penalty clause — can save people from headaches and heartache in the future.

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If you or someone you know is seeking legal guidance and representation from an experienced prenuptial agreement attorney in South Florida, please contact Klein Law Group at 561-220-6659 or fill out the contact form on our website at We offer a free 30-minute consultation to discuss your individual case in family law, bankruptcy and real estate. Our offices are located in Boca Raton, West Palm Beach and Fort Lauderdale, Florida.

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