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Using "nuptials" to deter cheating

One way that some couples try to deter one or both of them from cheating is the use of a prenuptial agreement or a postnuptial agreement. For example, a prenuptial might state that Spouse A is due $200,000 if Spouse B cheats and the marriage has to end. If there is no such stipulation in a prenuptial, a couple could decide to write a postnuptial agreement. This can be especially common if one spouse does cheat during the marriage.

In one regard, such an agreement gives the spouse who cheats a way to show how serious he or she is about committing to the marriage. By signing the agreement, the spouse acknowledges the financial consequences that may come if he or she cheats again. All that said, there can be some problems with using "nuptial" agreements to deter cheating.

Do not always prevail in court

One thing is that such agreements are not always enforceable. Perhaps one spouse cannot prove definitively that the other cheated, or the cheating did not constitute intercourse or something a judge might accept as "cheating." The definition of "cheating" is not always black and white.

It could also be that one party argues he or she felt under duress to sign the agreement. For example, Spouse A, after finding out B cheated, might threaten to take the children and deny visitation unless Spouse B signs a postnuptial agreement spelling out the consequences of potential future infidelity.

Differing income levels

Another potential issue can arise if one spouse earns a lot more than the other or has substantially more assets. It can seem unfair to that spouse to have to give up so much money if he or she cheats while the other stands to lose nothing if he or she cheats. A bilateral agreement can help in such cases. The lower-income/lower-asset spouse who cheats would simply get significantly less in divorce than he or she would have otherwise.

Are they effective?

The most important question is perhaps, "Do they actually deter cheating?" In some cases, they probably do. The prospect of losing serious money or assets can be enough to get a husband or wife through a period of temptation without straying. Of course, sometimes people cheat despite these clauses.

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