Infidelity isn’t just an emotional breach—it often triggers financial and legal consequences that ripple throughout a marriage. For some couples in Asheville, rebuilding trust after an affair involves more than therapy or difficult conversations. It involves signing a postnuptial agreement with terms that define what happens if the misconduct happens again. These terms frequently include what are commonly called “infidelity clauses.”
Postnuptial agreements offer spouses the ability to rewrite the rules of their marriage while they’re still married. An infidelity clause adds a layer of accountability—typically financial—for behavior that undermines the foundation of the relationship. But what do North Carolina courts really think about these clauses? Are they enforceable? Can they be punitive? How specific do they need to be?
The answer lies in balancing public policy, legal precedent, and the emotional reality of betrayal. While North Carolina is one of the few states that still recognizes marital misconduct in alimony determinations, that doesn’t mean the court will automatically enforce every clause that punishes infidelity.
An experienced Asheville prenup lawyer understands how to draft infidelity clauses that carry legal weight while respecting the limits of enforceability. This article explores how these provisions work, when they make sense, and how couples can use postnups to restore stability after trust is broken.
What Is an Infidelity Clause?
An infidelity clause is a provision within a postnuptial agreement that sets financial or legal consequences if one spouse engages in extramarital sexual conduct during the marriage. These clauses can vary widely in scope, language, and severity.
Common infidelity clause formats include:
- A lump sum payment to the faithful spouse if the other cheats
- A waiver of spousal support for the unfaithful spouse
- An increased property settlement for the wronged party
- A reduction in the share of marital property for the cheating spouse
- Language defining what qualifies as infidelity and how it must be proven
Infidelity clauses are designed to deter cheating, clarify consequences, or rebuild trust after past misconduct.
An Asheville prenup lawyer ensures that the language is specific, reasonable, and consistent with North Carolina law.
Why Include an Infidelity Clause in a Postnup?
1. Rebuilding Trust After an Affair
When a marriage survives infidelity, the betrayed spouse may want formal protection in case it happens again. A postnup with a cheating clause provides a clear roadmap for consequences.
2. Preventing Future Misconduct
Some couples include infidelity clauses not because there’s been a breach, but because one or both spouses want to reinforce monogamy and clarify expectations.
3. Creating Leverage in Divorce
In the event of divorce, an infidelity clause can shift the terms of property division or alimony to reflect wrongdoing—potentially reducing litigation.
4. Avoiding Litigation Over Fault
Rather than debating marital misconduct in open court, a postnup can predetermine the outcome based on a set standard of proof.
An Asheville prenup lawyer helps structure these clauses as part of a larger agreement that protects both spouses.
Enforceability of Infidelity Clauses in North Carolina
North Carolina courts do not automatically enforce every infidelity clause. While postnuptial agreements are generally valid under state law if they meet contract requirements, courts examine whether the clause:
- Was entered into voluntarily
- Is based on full financial disclosure
- Includes clear and specific terms
- Is not unconscionable
- Does not violate public policy
If the clause appears punitive, vague, or intended to financially ruin one spouse, it may be struck down.
An Asheville prenup lawyer avoids these pitfalls by drafting enforceable language that aligns with both contract law and marital misconduct statutes.
How Infidelity Affects Alimony in North Carolina
North Carolina law allows marital misconduct, including adultery, to influence spousal support awards.
- A dependent spouse who committed adultery may be barred from receiving alimony
- A supporting spouse who committed adultery may be required to pay alimony
- If both parties committed adultery, alimony is at the court’s discretion
This legal backdrop makes North Carolina more receptive than many states to infidelity clauses in postnups. However, courts still retain discretion over fairness and interpretation.
An Asheville prenup lawyer leverages this legal framework to draft clauses that align with judicial tendencies.
Common Infidelity Clause Structures
1. Lump Sum Payment
Example:
- “If Spouse A engages in sexual relations with any individual other than Spouse B during the marriage, Spouse A shall pay Spouse B the sum of $150,000 within 90 days of discovery.”
This type of clause is straightforward and compensates the faithful spouse without requiring a court to assign fault in divorce.
2. Alimony Waiver
Example:
- “In the event that Spouse A commits adultery, Spouse A shall waive any right to receive spousal support in the event of divorce.”
This reinforces North Carolina’s statutory approach to fault-based alimony and formalizes it in the agreement.
3. Property Division Shift
Example:
- “Should Spouse B engage in extramarital conduct constituting adultery, Spouse A shall receive an additional 25% share of all marital assets.”
This clause allows the parties to predefine how misconduct will affect asset distribution.
An Asheville prenup lawyer uses tested clause formats that align with enforceable standards.
Defining Infidelity in the Agreement
For an infidelity clause to be enforceable, it must include a clear definition of what qualifies as a breach.
Questions to answer:
- Is emotional cheating included?
- Does it require physical sexual contact?
- What kind of evidence is required—admission, eyewitness, electronic records?
- Is there a difference between ongoing affairs and one-time misconduct?
Example:
- “Infidelity shall be defined as voluntary sexual intercourse, oral sex, or other sexual acts with a person other than one’s spouse, with or without the spouse’s knowledge or consent. Text messages, photographs, and testimony of third parties shall be admissible to prove or disprove such conduct.”
Vague definitions like “cheating” or “betrayal” often fail in court.
An Asheville prenup lawyer includes precise, legally defensible language that removes ambiguity.
Addressing Proof and Discovery
Infidelity clauses work best when they specify how misconduct must be proven.
Options include:
- Preponderance of the evidence
- Clear and convincing evidence
- Admissible court documents (e.g., police reports, affidavits)
- Admissions or corroborated third-party testimony
You can also include:
- Confidentiality clauses
- Private arbitration for disputes
- Waivers of public litigation
An Asheville prenup lawyer ensures that evidentiary standards are practical and aligned with how courts evaluate misconduct.
Limitations on Infidelity Clauses
1. Cannot Punish Beyond Proportion
Courts may strike clauses that impose excessive financial penalties.
2. Cannot Waive Child Support or Custody Rights
A spouse cannot be penalized in the postnup for infidelity by losing custody or child support rights. Courts retain jurisdiction over child-related matters.
3. Cannot Contradict Public Policy
Clauses that appear to reward or encourage divorce may be invalidated.
Example: “Spouse A agrees to pay $500,000 to Spouse B upon filing for divorce.” This may be viewed as incentivizing divorce and could be struck.
An Asheville prenup lawyer carefully balances deterrence and enforceability without creating legal red flags.
Enforcing an Infidelity Clause During Divorce
If the marriage ends and an infidelity clause is triggered, the faithful spouse must decide how to proceed.
Options include:
- File a breach of contract claim
- Seek enforcement of financial provisions
- Submit the agreement in court as part of the divorce record
The court will examine:
- Whether the clause is enforceable
- Whether misconduct occurred
- Whether the consequences are fair
- Whether both parties had independent legal counsel
An Asheville prenup lawyer handles enforcement through contract litigation, mediation, or integration into the divorce decree.
When Infidelity Clauses Help—and When They Don’t
When They Help:
- After a known affair when the couple wants to reconcile
- When one spouse has admitted to misconduct
- When the clause is part of a broader postnup addressing support and property
- When both parties had legal counsel
When They Don’t:
- When the clause is vague or overly broad
- When one party is pressured into signing
- When the agreement was made without full financial disclosure
- When the clause is purely punitive or emotionally driven
An Asheville prenup lawyer helps evaluate whether a clause will actually protect the client or simply provoke conflict.
Alternatives to Infidelity Clauses
Some couples want accountability but prefer softer legal tools. Alternatives include:
- A general fault clause without naming infidelity
- Counseling commitments
- Spousal support floors or ceilings
- Property buyout terms triggered by divorce
- Mutual financial disclosures and reporting
While less targeted, these clauses still promote transparency and planning.
An Asheville prenup lawyer can draft comprehensive agreements that incorporate behavioral expectations without relying solely on fault clauses.
Frequently Asked Questions
Are infidelity clauses legal in North Carolina?
Yes, but they must be drafted carefully. North Carolina allows infidelity clauses in postnups, but courts will only enforce them if they are fair, specific, and not contrary to public policy.
Do I have to prove adultery to trigger the clause?
Yes. Most clauses require proof through documentation, testimony, or admission. The agreement should define the evidentiary standard.
Can an infidelity clause impact alimony?
Yes. North Carolina law already considers adultery in alimony decisions, and a postnup can reinforce or waive those consequences by agreement.
Is emotional cheating covered?
Only if the clause specifically defines it. Courts won’t enforce vague terms, so the clause must state what qualifies as infidelity.
Can we include a penalty for flirting or texting someone else?
You can try, but courts are unlikely to enforce subjective standards. Financial penalties require clear misconduct and proportional consequences.
Will a judge enforce a clause that gives me everything if my spouse cheats?
Maybe not. Clauses that award one party all marital property for misconduct are often viewed as punitive and may be struck down.
What if we reconcile after an affair?
The clause remains enforceable unless revoked or modified. Some couples amend their postnup after reconciliation to adjust the terms.
Can I use a clause to avoid public divorce hearings?
You can include arbitration or confidentiality clauses, but courts retain ultimate authority over child custody and support.
Do we need lawyers to make it enforceable?
Independent legal counsel for both spouses is highly recommended. It increases the chance of enforcement and reduces later challenges.
What happens if the clause is unenforceable?
Even if the clause fails, the rest of the postnup may remain valid—depending on how it was drafted. Courts can sever bad clauses while preserving the rest.
The McKinney Law Group: Postnuptial Agreements Built Around Your Life in Asheville
Life changes—your marriage might benefit from a legal update. Whether you’ve started a business or inherited property, we help Asheville spouses secure their interests through strategic postnup planning.
Call 828-929-0642 or email [email protected] to book a consultation.