3 Divorce Attorneys on How Power Couples Handle Cheating

In light of Lemonade.

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If Beyoncé's Lemonade is any indication that she has indeed contemplated walking away from an unfaithful marriage—she's not alone. But high-earning power couples have a variety of ways of handling infidelity, and they don't all necessarily involve a messy divorce. 

When a breakup would ultimately be too financially devastating (or simply too much of a headache), couples can reconcile under an arsenal of legal tactics—intended to protect the innocent party from being cheated on again.

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"Post-nuptial and pre-nuptial agreements are becoming increasingly popular across the board," says Maryam Atighechi, a family law attorney in Los Angeles, California. These agreements, which can be executed either before getting married or after (hence the pre- and post-), traditionally determine a division of assets in the event of a divorce. But they can also be tailored to address extra-marital affairs.

"If he wants me back, I want certain conditions."

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Clients have come to Hossein Berenji, founder and owner of Berenji & Associates, in Beverly Hills for post-nuptial agreements following infidelity in the marriage. "Somebody will come in saying 'Look my husband cheated and I want security if I go back or if he cheats again or if he leaves me. If he wants me back, I want certain conditions.'" 

Those conditions? Complete monogamy—and in the event of another affair, the offending party could end up paying a much, much higher settlement should the couple formally divorce.

These are known as "cheating clauses"—what Khloe Kardashian is reported to have secured with her estranged husband, Lamar Odom, prior to marrying. (Other terms include "fidelity clause" or "infidelity clause"). Allegedly, per the couple's pre-nuptial agreement, if Lamar cheated, he was to pay Kardashian $500,000 for each year that they were married in addition to spousal support.   

"That clause is rare," Atighechi points out. But it is nevertheless available to interested couples with a world of assets to protect: For some couples, that includes highly profitable businesses, off-shore accounts, and trusts, not to mention very, very lofty lifestyles and careers to maintain. (Conversely, other cheating clauses can penalize the unfaithful spouse by offering very little compensation or spousal support—or none at all).

But this isn't just a Kardashian-patented business tactic. Jessica Biel allegedly sought a cheating clause with Justin Timberlake, seeking at least $500,000 if he strayed from the marriage.

Despite the celebrity precedent of the husband being the unfaithful party, Neal Hersh, founding partner of Hersh, Mannis & Bogen, L.L.P. in Beverly Hills, a firm that specializes in high-asset clientele, finds infidelity among his clients to be "a gender-neutral issue." (Berenji echoes this, having drafted a cheating clause for a high-earning heterosexual couple in which the cheating clause went both ways).

The offending party could end up paying a much, much higher settlement should the couple formally divorce.​

And even the most steely pre-nuptial or post-nuptial agreement may not necessarily hold up in court depending on other variables: "They can become tricky but they are your best option at protecting your interests should the marriage not work out," notes Atighechi.

Still, couples take other routes that don't necessarily involve a lawyer. Some, Hersh says, disavow monogamy completely and have "an understanding." But even among couples with these rules, visibility of faithfulness remains premium, particularly as it relates to their image. "When dealing with celebrities or high-profile people, as we have often seen in the media, straying may become more of an issue."

For his part, Hersh has never, in his 36-year career, penned a post-nuptial agreement that included a cheating clause. But more importantly, he says he would not advise that any of his clients sign one.

"It's an invitation to trouble," he says.   

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