The press has reported that a number of celebrities have “infidelity clauses” in their prenuptial agreements. Jessica Simpson, Catherine Zeta-Jones, and Chelsea Clinton are said to have prenups that entitle them to large financial payments if their husbands commit infidelity. Sandra Bullock was reported to have a prenup with her ex, Jesse James, that provided that he would get no marital funds or marital property if he cheated and they divorced. Apparently, this did not keep Jesse from cheating but it probably allowed Sandra to keep all marital income and property.
In Illinois, cheating clauses in prenups can be enforceable if the infidelity can be proven and the prenup meets the requirements of Illinois law. Since wives cheat also I wonder why we do not hear about infidelity clauses being mutual. It could strengthen the enforceability of the clause if it applied to both parties. As long as the legal requirements are met, it is up to the individuals entering into a prenup whether to include an infidelity clause and whether it should apply only to one person or to both. A downside to include a cheating clause in a prenup is that proving the cheating could make the divorce more expensive and protracted. Since one of the reasons for having a prenup is to make divorce less expensive and quicker, cheating clauses are not common. If there are significant assets and high income at stake, however, including an infidelity clause in a prenup may make sense.
Infidelity is usually irrelevant in an Illinois divorce and does not affect how marital property is divided or whether alimony (“maintenance”) is awarded. If a Chicago couple wants infidelity to matter in the event they divorce, a premarital, or post-nuptial, agreement could be the answer. Proving infidelity will usually add to the cost and duration of a divorce. If there is not a lot of money at stake including a cheating clause may not make good financial sense.