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Including infidelity clauses in prenuptial agreements

When couples in Ohio decide to get married, much thought and decision-making is often included in the process. For some, preparing for marital problems is crucial. Although most people do not like to consider divorce prior to marriage or after only a few years of marriage, the reality is that some couples wisely seek a legal document that will serve their interests and offer protection in the event of a divorce or separation. Including a prenuptial agreement in a marriage may make the divorce process go more smoothly.

Infidelity can sometimes lead to a divorce, but in states that recognize no-fault divorce, citing adultery for cause of dissolution will not change the outcome of the divorce with regards to alimony and property division. The one exception to this rule is when marital funds are spent on the "other person." An ex-spouse can recover those funds in a divorce. Because the law does not offer many protections in infidelity situations, some couples include this scenario in their prenuptial or postnuptial agreements.

Infidelity clauses are commonly used by the rich and famous, and are specifically used to deter any marital indiscretions. In cases of infidelity, the cheating spouse would be required to pay the other spouse a large sum of money.

Couples like the idea of laying out a set of guidelines, including rules related to morality. By including an infidelity clause, it is clear to each spouse how the person feels about cheating. Because some courts may challenge the validity of such a clause, it is important to draft provisions to follow the state guidelines where it will be enforced. Careful drafting will help ensure that the document is legally enforceable.

When it comes to drafting legal documents such as prenuptial agreements and postnuptial agreements, it is important that both spouses understand the contents of the instrument. Each party should obtain independent assistance to ensure that his or her interests are best served and rights are protected.

Source: Forbes, "Can A Prenup Or A Postnup With An Infidelity Clause Deter A Husband From Cheating?" Jeff Landers, March 13, 2014

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