Sure, but it may not be enforceable.
This is often referred to as an “infidelity” clause, which can lay out consequences for a spouse going outside the marriage. An infidelity clause can deal with a physical affair or even an emotional affair. There are loads of examples of celebrities with rumored infidelity clauses (we’ve heard that Justin Timberlake will have to pay Jessica Biel $500,000 if he cheats according to their prenup; it doesn’t seem like there is any clause about what happens if Justin “ruins the world tour”, though).
As long as the prenup clearly defines what counts as infidelity, the biggest concern centers on the consequences of the cheating. In many states, including NJ and PA, infidelity clauses are not always upheld because they can’t be punitive. In other words, if the consequence of cheating seems like a punishment, then that will often not be upheld by a Court. Requiring a lump sum payment, forgoing alimony/having to pay more, significantly changing equitable distribution and these types of consequences can all seem very much like a punishment for cheating.
Getting help from one of our experienced lawyers, along with reasonable demands and careful drafting can help increase the chances that an infidelity clause will be upheld.
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