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Are Infidelity or Moral Turpitude Clauses in Prenuptial Agreements Enforceable?

“Are infidelity clauses enforceable in Florida? It’s an open question.”

Florida’s no-fault divorce law generally provides for assets and liabilities to be divided 50/50 and for spousal support to be awarded in an amount that does not exceed the recipient’s need.

Prenuptial agreements and postnuptial agreements sometimes prohibit infidelity, prohibit moral turpitude, or include lifestyle clauses that require the parties to conduct themselves in a certain manner. If these clauses are violated, then the pre- or postnuptial agreement states that the aggrieved spouse can receive unequal property distribution significantly in their favor, or some kind of payment as a result of the “wrongful” conduct.

Are these clauses enforceable in Florida?

It’s an open question.  There is no case in Florida that definitively addresses this issue.  Florida respects the right to freedom to contract. Generally, Florida courts will enforce an agreement, including a prenuptial or postnuptial agreement, so long as the agreement does not violate Florida’s public policy.

Argument Against Enforcement of Moral Turpitude Agreements in Divorce

Public Policy in States Declining to Enforce Moral Turpitude/Infidelity Agreements

Many states have “no-fault” divorce laws similar to Florida.  Courts in some of these states have determined that fidelity clauses and moral turpitude agreements are at odds with the policy underlying “no-fault” divorce and refuse to enforce them.

Their rationale is that litigation over infidelity clauses and moral turpitude agreements is often protracted, high conflict, expensive, and murky.  The language in moral turpitude agreements or infidelity clauses is often unclear as to exactly what conduct is prohibited.  Consequently, it’s difficult for courts to determine the parameters of the moral duty assumed by the parties.  Proof is usually based on circumstantial evidence and biased witnesses. Protracted and high conflict litigation has a negative impact on children. Expensive litigation depletes marital resources that could be used for better purposes. These are all harms that the no-fault divorce laws were designed to prevent.

Ultimately the courts in states that found these clauses to be unenforceable were not willing to allow parties to enter into private contacts that did an end-run around the “no-fault” law and re-task the court with adjudicating questions of fact that the legislature intended to eliminate.

Florida Public Policy

Florida has been a “no-fault” state since the 1970’s.  This means that a spouse need only prove “irreconcilable differences” to get a divorce.  It is no longer necessary to prove adultery, financial abandonment, or substance abuse in order to get a divorce.

Florida’s no-fault divorce law includes a preamble that states its purpose is to “promote the amicable settlement of disputes that arise between parties to a marriage” and to “mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.”  It appears that Florida law and policy is consistent with that of states in which moral turpitude agreements and infidelity clauses have been deemed invalid and unenforceable.

Argument in Support of Enforcement of Moral Turpitude Agreements in Divorce

Advocates of infidelity clauses; moral turpitude agreements; and lifestyle agreements might argue that even if these agreements are inconsistent with Florida’s “no fault” divorce law by providing for unequal distribution based on the conduct of a party, they do not violate Florida public policy.  One of the other stated purposes of Florida’s “no-fault” divorce law is “to preserve the integrity of marriage.”  Financial penalties that are intended to induce compliance with morality clauses function to “preserve the integrity of the marriage.” As such, enforcement of these clauses is consistent with Florida public policy.

The Take-Away: Stay Away

If the nuptial agreement will be governed by Florida law or enforced in Florida courts, then it’s safer that property division and alimony are not contingent on things like the existence of infidelity or moral turpitude, or whether a party has complied with a lifestyle clause. On the other hand, if you are the party against whom the clause will be enforced, it’s better not to have signed this type of agreement if you want to avoid the uncertainty and expense of litigation.

Even if morality clauses and lifestyle agreements are not enforceable, there may still be ways to draft an enforceable prenuptial agreement that achieves your goals.

Call DeVoe Law Firm if your divorce case involves the validity or enforcement of a prenupital agreement or postnuptial agreement.

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