- Introduction
On June 12, 2026, a Kentucky Court of Appeals unreported decision, Thomas v. Thomas, affirmed the enforcement of both a prenuptial and a postnuptial agreement. Both agreements clearly stated that, in the event of the husband’s infidelity, upon divorce, the wife would receive every marital asset. The postnuptial agreement specifically expanded the terms of the original infidelity clause in the prenuptial agreement to encompass almost all contact with other women. This included hugging, playing video games with women, or even maintaining a separate email account without permission. The husband self-drafted the expansive postnuptial infidelity term, with the assistance of counsel, after an initial episode of marital infidelity. When he was unfaithful again, he sought to escape both agreements, claiming that they were unconscionable. The court rejected his arguments and affirmed the enforcement of the marital agreements. Although the decision is unreported and therefore not binding precedent, it provides a noteworthy example of how a court may enforce broad infidelity provisions. For practitioners, this case is significant for what it signals about the enforceability of infidelity clauses, as well as how broadly those clauses can be written before a court will refuse to uphold them.
- Facts of the case
Gregory Thomas (husband) and Louvinia Thomas (wife) were married in Indiana on March 22, 2014. Before their wedding, the parties chose to execute a prenuptial agreement governed by Indiana law. The agreement stated that if the couple were to separate, due to any “infidelity” on Gregory’s part, all of their property and assets (joint or separate) would be given to Louvinia. The agreement further entitled Louvinia to $2,000 per month in support, paid “indefinitely” upon separation. The first time that Gregory engaged in infidelity during their marriage, the couple decided to execute a postnuptial amendment to their prior agreement, rather than separating. This new amendment, signed in February of 2021, was drafted entirely by Gregory and his legal counsel. It essentially expanded the scope of infidelity substantially. Under the amendment, infidelity included any contact with any woman (with a singular caveat for women he was actively employed with, during work hours). Gregory would not be allowed to make physical contact with another woman, nor text, call, or engage in activities with another woman. Gregory was also required to provide Louvinia with every password to his phone, email, as well as keyless entry to his car at all times. Further, the amendment brought the total monthly support obligation to $4,000 per month, indefinitely.
Gregory cheated again. Louvinia filed for a divorce in Kentucky in April of 2022. When Louvinia sought to enforce the prenuptial agreement and the postnuptial amendment, Gregory argued that both the original and the amendment were unconscionable and thus unenforceable. The circuit court disagreed with Gregory, and found that the terms of the prenuptial and postnuptial agreement should, and can, be enforced, with full award to Louvinia. Gregory appealed.
- Legal Issue
While the case involved several legal questions, the discussion below is limited to the infidelity issue. The issue surrounding the infidelity clause was whether the postnuptial amendment’s sweeping definition of infidelity (drafted by Gregory himself) rendered the agreement unconscionable and whether its one-sided financial award to Louvinia was unconscionable and thus unenforceable.
- Court Analysis
On the issue of the infidelity definition, the court acknowledged that the amendment’s scope was indeed expansive. However, the court noted that this definition came from Gregory’s own attempt to hold his marriage together after his initial infidelity. Using Indiana law as governing, Ind. Code § 31-11-3-8states that a premarital agreement is enforceable only if the challenging party proves that it was not voluntarily executed or that it was unconscionable at the time of execution. Indiana courts held that a contract is unconscionable only where “no sensible person, not under delusion, duress or distress” would accept its terms (Rider v. Rider). The court was unwilling to allow Gregory to escape an amendment that he had written himself. The terms were harsh, but they were the terms Gregory had agreed to.
- Practical Implications
Thomas v. Thomas carries significant implications for practitioners, such as a court’s willingness to enforce an infidelity clause, and one with such a broad scope. Infidelity clauses are not uniformly enforceable across state lines, and many jurisdictions decline to enforce them altogether. Indiana is among the states that permit such clauses, and this case further demonstrates that Indiana courts, and a Kentucky court applying Indiana law, will hold parties to them, even if the definition of infidelity is broad enough to encompass anything as ordinary as a hug.
For practitioners drafting infidelity clauses, this case raises a question worth considering: how broad is too broad? The court here enforced a definition of infidelity that included something as simple as a hug. That result was driven in part by the fact that Gregory had drafted the postnuptial amendment himself, which was a fact that the court relied on heavily in declining to find unconscionability. Practitioners should be aware that the breadth of an infidelity definition will depend on the circumstances under which it was written, and thus treated on a case-by-case basis. What this case has made clear is that a party who drafted a clause himself will garner little sympathy if he later argues that it is too extreme to enforce.
- Conclusion
Thomas v. Thomas confirms that marital agreements with an infidelity clause will be upheld, even if the definitions of infidelity are expansive and the penalties steep. More broadly, it stands as one of the relatively few higher U.S. court decisions to enforce an infidelity clause in a prenuptial agreement, though unreported. Thomas v. Thomas is a reminder of the significance of infidelity clauses: they may be legally binding promises, and if violated, can be enforced.