A cheating clause in a California prenuptial agreement is usually added to create financial consequences if one spouse cheats, but it is not automatically enforceable. California is a no-fault divorce state, so courts focus on fairness, not fault. A judge will only enforce a cheating clause if it is reasonable, fair, and consistent with California law at the time of divorce.
What Is a Cheating Clause?
A cheating clause, also called an infidelity clause, is a section in a prenup that sets financial consequences if one spouse cheats. These clauses focus on money and property, not moral judgment.
Common examples:
- give one spouse a larger share of marital property
- give one spouse a specific asset
- reduce spousal support if one spouse cheats
California’s No-Fault Divorce Rule
California is a no-fault divorce state, so you don’t need to prove cheating or wrongdoing to get divorced.
Because of this rule, courts usually do not look at adultery (cheating) when dividing property or deciding spousal support. This makes cheating clauses more difficult to enforce.
Are Cheating Clauses Enforceable in California?
Cheating clauses are not automatically invalid, but they are not guaranteed to be enforced. Each clause is reviewed based on the facts of the case.
Courts look at whether both spouses agreed freely, whether assets were fully disclosed, and whether enforcing the clause would be unfair or against public policy.
This means judges will look at the full picture, and if they consider the cheating clause, it must be fair and reasonable.
Limits Based on Public Policy
A court may refuse to enforce a cheating clause if it looks like punishment or tries to control personal behavior. Judges are especially cautious about clauses that could benefit one spouse enough to encourage divorce.
Clauses that focus only on financial outcomes, rather than blame, have a better chance of being applied. Even then, results can vary.
How Cheating Clauses Affect Spousal Support
Spousal support terms receive extra attention from courts. California law allows spouses to limit or waive support in a prenup, but only if the terms are fair when enforced.
If a cheating clause automatically cuts off support, a judge may find it unfair, especially if one spouse would be left without reasonable financial support.
Problems With Proving Infidelity
Cheating clauses can be hard to enforce because proof is often disputed. Spouses may disagree about what counts as cheating or how much evidence is needed.
These disputes can make a divorce longer, more expensive, and more stressful, especially in contested Los Angeles divorce cases. In high-net-worth divorces, the process can become even longer and more complex.
Why Careful Drafting Matters
Under California Family Code section 1612, prenuptial agreements can address property and spousal support within certain limits. More importantly, how a cheating clause is written can make a major difference.
Because these clauses carry legal risk, many couples work with attorneys experienced in California prenuptial agreement drafting to set realistic expectations and understand what is likely to be enforced.
How Courts Review Cheating Clauses During Divorce
In practice, cheating clauses often become a point of dispute once divorce proceedings begin. In one common situation seen by Nicole Duncan, a client entered the marriage believing a cheating clause would automatically protect them financially.
When the marriage later ended, the court looked beyond the wording of the clause and examined the entire agreement, the circumstances at the time it was signed, and whether enforcing it would still be fair. By that point, several years had passed, the marriage had been genuine and entered into in good faith, and the couple had children.
These factors carried more weight than the strict and unreasonable language of the cheating clause, which appeared designed solely to protect a wealthier spouse.
The judge did not focus on who was at fault and viewed the cheating clause as unreasonable and one-sided. Instead, the court examined whether the clause functioned as a reasonable financial term or crossed the line into punishment.
This type of review is typical in California. Even when a cheating clause exists, courts prioritize fairness, balance, and compliance with California law over personal conduct during the marriage.
Setting Realistic Expectations
Cheating clauses often reflect personal values at the start of a marriage. However, California law places more weight on fairness, voluntary agreement, and financial balance.
Knowing these limits can help you understand what a prenuptial agreement can and cannot do.
If you have questions about cheating clauses or prenuptial agreements in California, speaking with an experienced Los Angeles prenup lawyer can help you understand your options.
