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Note: This article was published by the author on www.marraige.about.com at http://marriage.about.com/od/rebuildtrust/fl/Does-an-ldquoInfidelityrdquo-Postnuptial-Agreement-Prevent-Cheating.htm
If
your spouse has cheated on you, and you are attempting to reconcile and rebuild
trust, you will face one of the most difficult challenges a married couple can
experience. One strategy that is sometimes used to dissuade further infidelity is to have the unfaithful spouse sign
an “infidelity post-nuptial
agreement
,” consenting to some specified financial payment (or
another significant item of value) to be paid if they cheat again. Such
agreements, also known as “lifestyle clauses” can be drafted by family law
attorneys.

Manhattan-based
divorce lawyer Jacqueline Newman explains the typical underlying
reasons for post-nuptial agreements: they are “often done after there has been
some element of infidelity in the marriage. The person who has strayed tries to
assure his/her spouse that it will not happen again and to prove the sincerity
of this promise, he commits to putting pen to paper to show how sorry he
is.”  She cautions against these agreements because, “If you over-commit
in the document just to get that second chance, you take the risk that your
spouse will wait just until the ink is dry to call his/her divorce attorney now
that they know they are going to get a good deal.”
Ms.
Newman believes that sometimes postnups may be what is needed for the couple to
move forward. “In a less skeptical tone, they can sometimes work because if a
spouse does believe that their straying spouse was willing to in essence ‘pay’
for his/her sins, it shows that they are committed, and that may be all that is
needed to get the couple back on track.” She notes, “Post-nuptial agreements
are much less common than prenuptial agreements, but we definitely have our
fair share of them in my office.”
“A money deterrent usually isn’t
enough to stop a wealthy would-be cheater.” ~ Andrew G. Vaughn, attorney
and professor
Andrew G. Vaughn, attorney, owner of NuVorce,
and Professor of Domestic Relations Law at Loyola University Chicago School of
Law tells About.com that these lifestyle clauses are most common with celebrity
clients. Professor Vaughn states, “They don’t work. Wealthy people have a lot
of money. A money deterrent usually isn’t enough to stop a wealthy would-be cheater.”
He does not recommend them and notes that they are relatively uncommon. In
fact, he asserts that it is rather complicated to draft highly enforceable
contracts like these.
Brandy Austin, an Arlington Texas-based family
law attorney, believes postnups to deter infidelity “are actually relatively
rare among lower middle to lower upper-class people. They are more for
celebrities, public figures…politicians.” But, in her experience as well, these
agreements in any form are not very common. “If it is included as a deterrent,
the likelihood of someone cheating agreeing to give all of their assets is
poor.” Ms. Austin also believes that these agreements aren’t as effective with
the wealthy.  “If you are already in a position to make a payout, money
doesn’t hold the same value and will not likely deter infidelity.”

Most states are “no-fault” in terms of divorce, but in her
state of Texas, courts may award a disproportionate amount of the estate in
some instances of infidelity based upon the “spending the community estate on
someone other than your spouse or kids – wasting community property.” Says Ms.
Austin.

On the other hand, Randall M. Kessler, family law attorney,
author, and law school professor in Atlanta, reports seeing these agreements
often in his practice, and believes that they are becoming more commonplace.
“Not just when a spouse misbehaves, but also when a relative wants to give a
spouse property but does not like the other spouse so it ‘keeps the gift in the
family.’” He believes they do work, and they are “enforceable in every state
except Ohio and what they do, is to cause people to negotiate their
divorce.  Why go to court and risk having a postnuptial agreement enforced
against you if you can negotiate a little more than is required under the
postnup?” He even has recommended them, for example, “When someone is mad at
their spouse, but does not want a divorce.” He cautions, however, “just like
any family law case, think long and hard about it because once the subject is
raised or lawyers get involved, feelings get hardened and it often spirals into
a full-blown divorce.”
Jeffrey A. Landers, CDFA™, the creator of the Think
Financially, Not Emotionally®
 brand of books and seminars
designed to educate, empower and support women before, during and after divorce
has written on this topic on Forbes online. He explains, “Lifestyle clauses
address non-financial aspects of the marriage, like who will do the housework,
the frequency of vacations…” They are “generally seen as guidelines for
behavior within the marriage, and although they aren’t focused on assets, per
se, there are usually financial penalties for failure to comply with the
terms.” He states that clauses involving infidelity are the most common and
popular of such lifestyle clauses. According to Mr. Landers, they are not just
for celebs anymore, either.
According to Pennsylvania family law attorney, Jeffrey
Kash
, this topic does not come up often in his practice, but these
agreements are enforceable in his state. He does recommended clients “push for
agreements that penalize infidelity and for other concessions in cases where a
spouse has engaged in marital misconduct and wants to stay in the marriage.” He
advises pursuing these concessions “while the other spouse is feeling guilty”
which helps the betrayed partner before the blame game and fighting starts.
“Don’t just limit these types of agreements to infidelity with members of the
opposite sex.” he also suggests.

Mr. Kash describes a case that he handled several years ago, in which the
husband reconciled with his wife after the wife had an affair.  As a
condition of the reconciliation process, the husband requested that the wife
sign a “post-nuptial agreement that would limit her marital property rights in
the event that she subsequently became involved in another extramarital
affair.” You can guess what happened next. Wife cheats again and the
postnuptial, under which the wife had waived her right to marital property, was
upheld.

As a couples’ therapist, whether lifestyle clauses
for infidelity are enforceable, or whether they are utilized by a couple or
not, talking and thinking about them can be beneficial.  If they are
properly negotiated and can be upheld, they can certainly be structured to
deter cheating and other bad acts.  They can also be used where both
parties want divorce proceedings to be kept confidential in the event of future
bad behavior. All of the experts have made good points to consider whether or
not this might be a good option for your marriage. 
The
process of negotiating “lifestyle clauses” may open up the lines of
communication between spouses, and help the marriage in unforeseen ways. These
clauses might encourage people in a committed relationship to discuss fidelity
issues and expectations in advance. Feelings about monogamy and infidelity will
be made clear. Such communication alone can be helpful, even if the clause is
never enforced.  
What couples considering lifestyle clauses should really focus on is the
attitude of the one who cheated. If the partner who strayed seems more than
willing to do anything to save the marriage, including signing a postnup, that
can be viewed as a positive step forward. Alternatively, if the betrayed
partner has to cajole their unfaithful spouse into such an agreement, that is
probably a strong indication that the cheating behavior isn’t likely to
change. 
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