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The Art of the Infidelity Clause

The Daily Record

When it comes to adultery, an infidelity clause in the prenuptial agreement can make a million-dollar difference in a client’s rights after divorce.

But drafting such a clause can be challenging, and the strategies for negotiation vary depending on which side an attorney is representing: The one with money or the one marrying into it? Someone who’s cheated in the past or someone who’s been cheated on?

Above all, the clause needs to be tailored to the client’s needs and perceptions of what constitutes infidelity, family law and estate planning attorneys say.

“Everyone’s case is unique,” said Deborah L. Webb, of Lerch, Early & Brewer Chtd. in Bethesda. “We don’t know the circumstances that will exist at the time the prenup is going to be triggered. We are really trying to envision a future and that is impossible.”

Level of detail

These so-called “bad boy, bad girl clauses” have always been a popular and “sexy” option, said New York attorney Arlene G. Dubin, author of “Prenups for Lovers: A Romantic Guide to Prenuptial Agreements.” They gain notoriety with celebrities like Michael Douglas and Catherine Zeta-Jones, who are rumored to have a “fling fee” worth millions in their prenuptial agreement.

Even so, Dubin is not a fan, saying an infidelity clause can “muddy the waters” of an otherwise fine prenup. “The provision is fuzzy, so it may basically make a good document unenforceable because it is too vague, too difficult to prove,” she said.

Start with the definition of “infidelity” itself.

“What is sex?” said David N. Pessin, an estate planning and wealth preservation attorney at Pessin Katz Law P.A. in Towson.  “Intimacy can mean anything from touching to sexual intercourse,” and more, he said, including online sex chats, emotional cheating or even fantasizing about someone else.

“There’s no good definition to this thing,” Pessin said. “That’s the problem.”

In Maryland, adultery, as a ground for divorce, has a generally accepted meaning — voluntary genital-to-genital intercourse with someone other than the spouse, involving penetration but not necessarily completion. Proof of adultery is generally circumstantial, requiring a showing of an “adulterous disposition” and opportunity to act on it.

Jeffrey N. Greenblatt, of Joseph Greenwald & Laake P.A. in Rockville, said he has written some infidelity clauses that simply stipulate that if one party commits adultery, that person waives alimony.

“It’s a penalty clause,” Greenblatt said.  “It  says,  ‘But  if I do this,  then you need to be chaste  and not take your  pants  off and  not sleep  with someone other than me.’”

But “infidelity” is not necessarily synonymous with adultery, nor even with “sexual relations,” a broader term that determines what constitutes “co- habitation” by a married couple.

“Sexual relations” is broader than sexual intercourse, but the Court of Special Appeals decided recently, in Bergeris v. Bergeris, that it was still not broad enough to include occasional phone or electronic sex with- out physical intimacy.

For purposes of a prenup, though, phone sex or texts can still be considered “infidelity” — if the parties pro- vide that they are.

Bergeris should not impact infidelity clause cases in the future, Webb said, because the definition of infidelity is in the hands of attorneys writing the prenuptial agreements. “You need to say, ‘Infidelity means the following,’” Webb said. “It means heavy petting. It does not necessarily mean penis to vagina. It means oral sex. It means all things, not just penetration. … I think you need to define what that is.”

Each case is different, Webb said, and crafting the clause depends on the parties involved.

“It’s not like a cookie-cutter answer,” she said.

Wealthier clients who have been cheated on or “burned” in their previous marriages are more likely to ask for infidelity or adultery clauses, Webb said.

“It’s like, ‘If Wife 2 burns me, then she’s not going to get a windfall of all the sacrifices I have been doing in the marriage, because I’m the faithful one,’” she said.

Webb has also had a client who was concerned her future husband would stray since he had cheated in the past. The woman asked Webb to draft a clause stipulating her fiancé would have to pay a flat sum for each person she could prove he had an affair with.

“She said, ‘Look, if you do this to me, you’re going to pay,’” Webb said.

Webb said if she were representing the party likely to enforce the clause, she would make the definition and method of proof as broad as possible, stipulating an admission from the paramour is not necessary and that texts or emails between the extramarital couple could count as evidence of opportunity and disposition.

But, if Webb were representing the party  who would  be  penalized,  she would write the infidelity clause as narrowly as possible — maybe limiting it to sexual intercourse, for example — and requiring a high level of proof.

“I would want it with as much definition as possible, so it’s hard to prove it,” Webb said.

Pessin, who frequently represents professional athletes, discourages them from including infidelity clauses in prenuptial agreements — sometimes vehemently.

Once, he said, he had almost finished negotiating the terms of a prenuptial agreement for a professional baseball player when the client’s fiancée asked for a stipulation that voided the prenup if the man cheated.

“I said, ‘I’m not putting that in there,’” Pessin said. “‘I refuse to put that in there.’”

But the client’s beloved insisted, and so the client insisted — and the clause was added, Pessin said.

“Then it was a matter of figuring out what  the penalty  would be  and hoping like hell he would stay true,” Pessin said.

In that case, Pessin said, he drafted the clause so that infidelity must be proved “with clear and convincing evidence that the other party shall have initiated and consummated sexual intimacy with a third person without the consent of both of the parties.”

For the penalty, the baseball player would owe $10 million if he cheated and his fiancée’s alimony and cash property settlement would be cut in half if she were unfaithful.

In general, Pessin said, he would just as soon leave it out.

"I really don't want it in there," Pessin said. "For some of my clients, I know they are going to cheat."

To Dubin, the author, infidelity is rarely so cut-and-dried.

“Marriage, it’s very circular,” Dubin said. “You can’t tell who is at fault. Usually, it’s some sort of interactive problem. If someone is unfaithful, it may be they just reached their limit, so you never know.”

Is it even enforceable?

While Maryland generally recognizes prenups, no reported case has specifically addressed the enforceability of infidelity clauses.

A case in California, Diosdado v. Diosdado, went to that state’s Court of Appeal, which held that a contract awarding liquidated damages if one party engaged in “any act of kissing on the mouth or touching in any sexual manner of any person outside of said marital  relationship”  is not enforceable.

Webb said she had not personally seen an infidelity clause enforced.

"That's probably because it's nice to have in there," Webb said. "It gives you something to negotiate about, but generally when it comes to money and it's not kids, people look at it as a business transaction."

Deborah Webb is a divorce lawyer at Lerch, Early & Brewer in Bethesda, Maryland. As an accomplished family law attorney, she skillfully guides clients from separation through divorce, as well as through alimony and custody issues. For more on infidelity clauses and prenuptial agreements contact Deborah at (301) 657-0725 or  dlwebb@lerchearly.com.

This article first appeared in The Daily Record’s Maryland Family Law Update, June 2014.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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