Breach clauses: Proceed with warning

In its broadest sense, an unfaithfulness clause is a provision in a prenuptial or postnuptial agreement (collectively, “prenuptial agreements”) that provides that if either party is unfaithful during the marriage, he or she must suffer a financial penalty.

In popular media, infidelity clauses have been categorized as a subset of “lifestyle clauses,” or clauses that dictate how parties should live during marriage. Courts have taken a more rigorous view of infidelity clauses, recognizing them as merely a type of provision intended to punish a party for perceived misconduct during the marriage (“misconduct clauses”).