“Bad Boy” Clauses in Florida Prenuptial Agreements.

“Bad Boy” or “Bad Girl” Clauses a/k/a Moral Turpitude Clauses or Infidelity Clauses in Prenuptial or Marital Agreements have been gaining popularity in recent years.

            In essence, these clauses serve as a tool to dissuade a spouse from engaging in certain types of behaviors or activities during the marriage, such as  adultery, gambling, excessive drinking, and the like, which would financially penalize a “bad” or offending spouse in the event of a divorce through the unequal distribution of marital property, such as amount of alimony, or waiver of certain rights that the “bad” spouse would have otherwise received, but for the agreed-upon inappropriate conduct.  

            Unfortunately, there is not a lot of case history on the topic in Florida, and therefore, it is difficult to assess what a court is likely to do when such penalty clauses exist in a prenuptial agreement, especially when such clauses may be drafted in such a way that would be contrary to Florida Law and public policy at the time of a divorce.   It is important to note that Florida is a no-fault divorce state, and a spouse initiating a divorce proceeding must merely show that the marriage is irretrievably broken, i.e., the marriage is broken beyond repair, and there is no chance of getting back together with one’s spouse. “No-fault” means fault is not usually considered when making decisions about the terms of a divorce. Property is divided and alimony is awarded, regardless of a spouse’s behavior during the marriage. Consequently, “Bad” spousal conduct does not necessarily come into play in the dissolution of marriage action, unless a party has engaged in dissipation of marital assets or waste, but Florida’s equitable distribution statute resolves the issue when awarding unequal distribution or designation of marital assets and liabilities in favor of one spouse for such waste.

            While Florida does respect the freedom of individuals to form contracts and enforce prenuptial agreements, agreements cannot violate public policy and may be deemed unenforceable, such as waiver of temporary alimony or attorney’s fees. It is therefore important to consult an experienced family law attorney for your specific prenuptial needs to avoid potential pitfalls in your Agreement.

            If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI.