Massachusetts courts do not enforce infidelity clauses in prenuptial agreements. Under the landmark DeMatteo v. DeMatteo (2002) ruling, the Commonwealth applies a two-look test requiring prenups to be fair and reasonable at both execution and enforcement. Lifestyle clauses that penalize cheating are considered contrary to public policy and will be invalidated, even when the remainder of the prenuptial agreement is upheld. Couples seeking financial protection should instead focus on property division provisions that satisfy Massachusetts' conscionability standards.
Key Facts: Infidelity Clauses in Massachusetts Prenups (2026)
| Category | Massachusetts Law |
|---|---|
| Filing Fee | $215 base + $15-$90 surcharge = $230-$305 total |
| Nisi Waiting Period | 120 days (1A) or 90 days (1B) |
| Residency Requirement | 1 year if breakdown occurred outside MA; immediate if within MA |
| Grounds | No-fault and fault-based available |
| Property Division | Equitable distribution (all property divisible) |
| Infidelity Clause Status | Not enforceable under Massachusetts case law |
| Governing Statute | M.G.L. Chapter 209 § 25 |
| Key Case | DeMatteo v. DeMatteo, 436 Mass. 18 (2002) |
Are Infidelity Clauses Enforceable in Massachusetts?
Massachusetts courts will not enforce infidelity clauses in prenuptial agreements. The Supreme Judicial Court has consistently held that lifestyle clauses, including cheating prenup penalties and adultery clause provisions, undermine the integrity of marital contracts and conflict with the state's no-fault divorce framework. Under M.G.L. Chapter 208 § 1A, either spouse may obtain a divorce based on irretrievable breakdown without proving fault, making punitive infidelity provisions incompatible with Massachusetts public policy.
The landmark DeMatteo v. DeMatteo decision from 2002 established the framework courts use to evaluate all prenuptial agreements in Massachusetts. While DeMatteo did not specifically address infidelity clauses, subsequent case law and legal commentary confirm that prenup cheating payouts fall into the category of unenforceable lifestyle clauses. Massachusetts family law attorneys consistently advise against including such provisions because courts will invalidate them, potentially casting doubt on the entire agreement's validity.
Massachusetts is one of 22 states that has not adopted the Uniform Premarital Agreement Act (UPAA), instead applying stricter scrutiny through its two-look test. This heightened standard means that even provisions considered enforceable in other jurisdictions may fail in Massachusetts courts. The state's approach prioritizes fair and reasonable outcomes over punitive measures based on marital misconduct.
The Massachusetts Two-Look Test for Prenuptial Agreements
Massachusetts courts employ a two-look test when evaluating prenuptial agreements, requiring the contract to satisfy fairness standards at two distinct points in time. This analysis, established in DeMatteo v. DeMatteo, 436 Mass. 18 (2002), examines whether the agreement was fair and reasonable when signed and whether it remains conscionable when enforcement is sought during divorce proceedings. Infidelity clauses typically fail this test because they impose punitive consequences that courts deem unreasonable.
First Look: Fairness at Execution
During the first look, Massachusetts courts examine whether the prenuptial agreement met several requirements at signing. The agreement must contain fair and reasonable provisions for both parties, must include full financial disclosure from each spouse, and must explicitly waive spousal rights except those specifically preserved. Courts also consider whether both parties had independent legal counsel, whether adequate time existed to review the agreement, and whether each spouse understood the terms and their legal implications.
For a prenuptial agreement to pass the first look, its terms cannot essentially vitiate the very status of marriage. This language from DeMatteo suggests that provisions designed to punish one spouse for conduct during the marriage, rather than fairly allocating property and support, may fail at this initial stage. An infidelity clause prenup Massachusetts courts evaluate would likely be deemed unreasonable because it imposes financial penalties for personal conduct rather than addressing legitimate property division concerns.
Second Look: Conscionability at Enforcement
The second look occurs during divorce proceedings when a spouse seeks to enforce the prenuptial agreement. Massachusetts courts examine whether changed circumstances during the marriage make enforcement unconscionable. Under DeMatteo, the second look ensures that the agreement has the same vitality at the time of the divorce that the parties intended at the time of its execution. Even a prenup that was fair when signed can become unenforceable if circumstances have changed dramatically.
Courts will not enforce a prenuptial agreement if doing so would leave the contesting spouse without enough property, maintenance, or appropriate employment to support themselves. The conscionability standard at the second look creates an additional barrier for adultery clause prenuptial provisions, as courts are reluctant to strip a spouse of financial support based on allegations of infidelity that may be difficult to prove and may have occurred under complex circumstances.
Why Massachusetts Courts Reject Lifestyle Clauses
Massachusetts courts invalidate lifestyle clauses including infidelity penalties for several legal and practical reasons. First, proving infidelity in court requires actual evidence, which may be difficult or impossible to obtain without violating privacy rights or engaging in invasive investigation. Second, enforcing such clauses may result in outcomes that are unfair or unreasonable given the totality of circumstances surrounding the marriage's end. Third, these provisions conflict with Massachusetts' no-fault divorce framework, which allows couples to end marriages without assigning blame.
The state's strong public policy favoring equitable outcomes in divorce proceedings takes precedence over contractual provisions that seek to punish marital misconduct. Under M.G.L. Chapter 208 § 34, courts already have authority to consider spousal conduct when dividing property, but only to the extent that conduct affected the marital estate financially. A spouse who dissipated marital assets through an affair might receive a smaller share of property, but this analysis differs fundamentally from a contractual penalty triggered solely by infidelity.
Massachusetts law does allow for fault-based divorce under M.G.L. Chapter 208 § 1, which lists adultery as a ground for divorce. However, filing for fault-based divorce based on adultery provides no automatic financial advantage. The court still applies the same equitable distribution factors under Section 34, considering the conduct of the parties only as one factor among many. This framework demonstrates that Massachusetts prefers judicial discretion over predetermined contractual penalties for marital misconduct.
What Infidelity Clauses Cannot Do in Massachusetts
Couples considering an infidelity clause prenup in Massachusetts should understand the specific limitations. Courts will not enforce provisions that automatically award a larger property share to the faithful spouse upon proven infidelity. Courts will not uphold clauses that terminate or increase alimony based on adultery discovered after divorce filing. Courts will not validate penalty payments, such as requiring a cheating spouse to pay $100,000 or forfeit specific assets. Courts will not enforce provisions that link child custody or support to parental infidelity.
Even if both parties willingly sign a prenup cheating payout provision, Massachusetts courts retain authority to invalidate that clause as against public policy. Unlike commercial contracts where parties have broad freedom to negotiate terms, marital agreements receive heightened scrutiny because of the intimate nature of the relationship and the state's interest in fair divorce outcomes. The inclusion of an unenforceable infidelity clause may also call into question whether the entire agreement represents a fair bargain, potentially jeopardizing otherwise valid provisions.
Legal Alternatives to Infidelity Clauses
Couples seeking financial protection in Massachusetts prenuptial agreements should focus on provisions that courts will enforce. Property classification provisions that identify separate property brought into the marriage are enforceable when properly drafted. Business protection clauses that shield one spouse's company ownership from division are commonly upheld. Inheritance preservation provisions that keep family wealth separate are generally enforceable. Debt allocation clauses that assign responsibility for premarital debts are routine and enforceable.
Sunset Clauses
A sunset clause provides that certain prenuptial provisions expire after a specified period, typically 10-15 years of marriage. This approach acknowledges that circumstances change over time and that spouses who remain married for decades have built a genuine partnership deserving of different treatment than a short-term marriage. Massachusetts courts view sunset clauses favorably because they ensure the agreement remains fair as circumstances evolve.
Tiered Property Division
Rather than penalizing infidelity, couples can structure property division based on marriage duration. For example, a prenup might provide that after 5 years of marriage, the non-monied spouse receives 20% of appreciated marital assets, increasing to 30% after 10 years and 40% after 15 years. This approach rewards marital longevity without attempting to punish misconduct, making it far more likely to survive judicial scrutiny under the two-look test.
Mediation and Arbitration Clauses
Prenuptial agreements can require mediation before litigation, potentially reducing divorce costs by 40-60% compared to fully litigated proceedings. Massachusetts courts enforce alternative dispute resolution provisions as long as they do not waive fundamental rights. These clauses can provide structure and predictability during divorce without the enforceability problems of lifestyle clauses.
Comparison: Infidelity Clause Enforceability by State
| State | Infidelity Clause Enforceability | Divorce Type | Notes |
|---|---|---|---|
| Massachusetts | Not Enforceable | No-fault and fault | Two-look test applies |
| California | Not Enforceable | Pure no-fault | Diosdado case prohibits |
| Texas | Potentially Enforceable | No-fault and fault | Fault divorce available |
| New York | Uncertain | No-fault and fault | Case-by-case analysis |
| Florida | Generally Not Enforceable | No-fault only | Public policy concerns |
| Maryland | Potentially Enforceable | No-fault and fault | Limited case law |
| Nevada | Not Enforceable | Pure no-fault | Community property state |
| Hawaii | Not Enforceable | Pure no-fault | Recent policy shift |
Massachusetts Divorce Filing Requirements
Understanding Massachusetts divorce requirements is essential when drafting prenuptial agreements that courts will enforce. The state imposes specific residency requirements that vary based on where the marriage breakdown occurred. If the irretrievable breakdown happened while both spouses lived in Massachusetts, the filing spouse needs only to be domiciled in the Commonwealth at filing time with no minimum duration requirement. However, if the breakdown occurred outside Massachusetts, the filing spouse must have lived continuously in the state for at least one year immediately before filing under M.G.L. Chapter 208 §§ 4-5.
Filing Fees and Court Costs
Massachusetts Probate and Family Court charges $215 for a Complaint for Divorce plus a mandatory $15 summons surcharge, bringing the minimum filing cost to $230. Some counties impose an additional $90 surcharge, raising the total to $305. As of March 2026, verify current fees with your local Probate and Family Court clerk. Fee waivers are available for parties whose income falls at or below 125% of federal poverty guidelines.
Waiting Periods
Massachusetts imposes mandatory waiting periods before any divorce becomes final. For uncontested 1A divorces filed jointly, the total waiting period is 120 days from the hearing date, broken into 30 days until the Judgment Nisi enters and 90 days until it becomes absolute. For contested 1B divorces or fault-based divorces, the Judgment Nisi enters immediately after the final hearing and becomes absolute after 90 days. There are no exceptions to these mandatory waiting periods for any divorce in Massachusetts.
Equitable Distribution and Prenuptial Agreements
Massachusetts follows equitable distribution for property division, meaning assets are divided fairly but not necessarily equally. Unlike many states, Massachusetts makes all property owned by either spouse subject to distribution in divorce, regardless of when or how it was acquired. This broad definition includes real estate, retirement accounts, vehicles, trusts, stocks, bank accounts, gifts, inheritances, and trust interests under M.G.L. Chapter 208 § 34.
A properly drafted prenuptial agreement can modify these default rules by specifying which assets remain separate property and how marital property will be divided. However, the agreement must satisfy the two-look test at both execution and enforcement. Courts consider the length of the marriage, each party's contributions, the nature and timing of property acquisition, and the economic circumstances of each spouse when determining whether the prenuptial agreement's property division provisions remain fair.
Massachusetts uniquely considers the possibility of future inheritances when dividing marital property, a factor that can be addressed in prenuptial agreements. Vaughan affidavits are used to disclose potential future inheritances that may impact property division. Couples with significant expected inheritances should address these assets explicitly in their prenuptial agreements rather than relying on unenforceable infidelity penalties.
Creating an Enforceable Massachusetts Prenuptial Agreement
To create a prenuptial agreement that Massachusetts courts will enforce, couples should follow specific best practices derived from DeMatteo and subsequent case law. Both parties should retain independent legal counsel who can advise on rights being waived and the agreement's implications. Massachusetts courts view independent representation as strong evidence that both parties understood the agreement and entered it voluntarily.
Full financial disclosure is mandatory for prenuptial agreement validity in Massachusetts. Each party must provide complete documentation of assets, income, debts, and financial expectations. Failure to disclose material financial information can invalidate the entire agreement, regardless of how fair its terms appear. Courts have invalidated prenups where one spouse concealed business interests, retirement accounts, or anticipated inheritances.
Timing matters significantly for Massachusetts prenuptial agreements. Courts scrutinize agreements signed close to the wedding date for evidence of coercion or inadequate consideration. While no specific minimum exists, family law attorneys generally recommend finalizing prenuptial agreements at least 30 days before the wedding ceremony. Agreements signed days before the wedding face heightened scrutiny and may be invalidated if the reviewing spouse had inadequate time to consult counsel and consider alternatives.
When Marital Conduct Affects Divorce Outcomes
Although infidelity clause prenup Massachusetts provisions are unenforceable, marital misconduct can still affect divorce outcomes through other legal mechanisms. Under M.G.L. Chapter 208 § 34, courts may consider the conduct of the parties when dividing property, though this factor typically applies only when misconduct affected the marital estate financially. A spouse who spent $50,000 on an affair partner, for example, might receive a smaller share of remaining marital assets to account for that dissipation.
Fault-based divorce grounds under M.G.L. Chapter 208 § 1 include adultery, cruel and abusive treatment, desertion, and habitual intoxication. Filing for fault-based divorce requires proving the specific ground alleged, which may extend litigation duration and increase costs. While adultery can serve as grounds for divorce, proving it provides no automatic financial advantage beyond potentially influencing the court's discretionary property division analysis.
Alimony determinations under M.G.L. Chapter 208 § 48 do not automatically consider infidelity unless it caused direct economic harm to the marital estate. The Massachusetts Alimony Reform Act of 2011 established durational limits and calculation guidelines that apply regardless of marital fault. Courts focus on factors including marriage length, income disparity, age, health, and employability rather than which spouse caused the marriage to fail.
Working with a Massachusetts Family Law Attorney
Couples considering prenuptial agreements in Massachusetts should consult with qualified family law attorneys who understand the state's unique two-look test and its implications for lifestyle clauses. An experienced attorney can draft provisions that accomplish legitimate financial planning goals while avoiding unenforceable infidelity penalties. Attorney fees for prenuptial agreement drafting in Massachusetts typically range from $1,500 to $5,000 for simple agreements and $5,000 to $15,000 for complex situations involving business interests or significant assets.
Legal representation is particularly important given Massachusetts' requirement that both parties fully understand the agreement and its implications. Courts examining prenuptial agreements at the first look consider whether each spouse had adequate opportunity to consult independent counsel. While Massachusetts does not require both parties to have attorneys, the absence of independent representation may raise questions about whether the agreement was truly voluntary and informed.
Frequently Asked Questions
Can I include an infidelity clause in my Massachusetts prenup?
You can include an infidelity clause in a Massachusetts prenuptial agreement, but courts will not enforce it. Massachusetts treats adultery clause prenuptial provisions as unenforceable lifestyle clauses that conflict with the state's no-fault divorce framework. Including such a clause may also jeopardize other provisions if courts determine the agreement was not entered in good faith.
How much does a prenup cost in Massachusetts in 2026?
Massachusetts prenuptial agreement attorney fees range from $1,500 to $15,000 depending on complexity. Simple agreements for couples with limited assets typically cost $1,500-$3,000. Complex agreements involving business interests, multiple properties, or significant wealth may cost $5,000-$15,000. Both parties should have independent counsel, doubling the total legal cost.
What is the two-look test for Massachusetts prenups?
The two-look test requires Massachusetts courts to evaluate prenuptial agreements at two points: execution and enforcement. At the first look, the agreement must be fair and reasonable when signed, with full financial disclosure and explicit waivers. At the second look during divorce, the agreement must remain conscionable and not leave either spouse without adequate support.
Can adultery affect property division in Massachusetts?
Adultery can indirectly affect property division in Massachusetts if the affair caused financial harm to the marital estate. Under M.G.L. Chapter 208 § 34, courts consider the conduct of the parties when dividing property. A spouse who dissipated marital assets on an affair partner may receive a smaller share of remaining property, but adultery alone does not automatically change division percentages.
How long does a Massachusetts divorce take?
Uncontested 1A divorces in Massachusetts take approximately 4-6 months total, including a mandatory 120-day nisi waiting period (30 days to Judgment Nisi plus 90 days to absolute). Contested 1B divorces typically require 12-18 months or longer for litigation, plus a 90-day nisi period before finalization. No exceptions exist to these mandatory waiting periods.
What happens to a prenup with an unenforceable clause?
Massachusetts courts may sever unenforceable clauses and enforce the remainder of a prenuptial agreement if the invalid provisions are not material to the overall agreement. Including a severability clause specifically stating that invalid provisions should be removed without affecting other terms increases the likelihood that courts will preserve the enforceable portions.
Is Massachusetts a no-fault divorce state?
Massachusetts offers both no-fault and fault-based divorce options. Under M.G.L. Chapter 208 § 1A, couples can file for no-fault divorce based on irretrievable breakdown. Fault-based grounds under M.G.L. Chapter 208 § 1 include adultery, cruel treatment, desertion, and habitual intoxication. Most couples choose no-fault divorce as it avoids the burden of proving fault.
What makes a Massachusetts prenup unenforceable?
Massachusetts prenuptial agreements become unenforceable if they lack full financial disclosure, were signed under duress or without adequate time for review, contain provisions that vitiate the status of marriage, or have become unconscionable due to changed circumstances. Lifestyle clauses including infidelity penalties are specifically unenforceable as contrary to public policy.
Can I protect my business in a Massachusetts prenup?
Yes, business protection provisions are commonly included in enforceable Massachusetts prenuptial agreements. You can specify that business ownership and appreciation remain separate property, establish valuation methods for divorce proceedings, and limit a spouse's claim to business assets. These provisions must satisfy the two-look test but are generally enforceable when properly drafted.
What are the residency requirements for Massachusetts divorce?
Massachusetts residency requirements depend on where the marriage breakdown occurred. If the breakdown happened while both spouses lived in Massachusetts, the filing spouse needs only to be domiciled in the state at filing. If the breakdown occurred outside Massachusetts, the filing spouse must have lived continuously in the state for at least one year before filing under M.G.L. Chapter 208 §§ 4-5.