The next prenup provision: What happens if your spouse cheats on you with AI?

Cheating on your spouse may not require another person. That's according to some definitions of infidelity that are beginning to appear in prenuptial agreements.

Julia Rodgers, founder and CEO of Hello Prenups, told Business Insider some clients are requesting prenups that expand affairs to include encounters with AI. While she couldn't share specific customer clauses, she shared an example that reflects what's been used in real client agreements:

With the loneliness epidemic and the explosive growth of AI companion apps like Replika and EVA AI, people are increasingly turning to chatbots for their emotional, romantic, and sexual needs — including some who are already in intimate relationships with other humans.

Lawyers who work on prenups told Business Insider they are beginning to field questions about how AI relationships could be addressed in those agreements. Most had not personally drafted an AI-infidelity provision, though several said the issue was a natural extension of a broader trend of couples redefining cheating beyond sex with another person.

While the legal questions remain, one thing's for certain: AI is giving couples one more boundary to define before they say "I do."

Redefining 'infidelity' to include AI

HelloPrenup handles tens of thousands of prenups a year, a third of which include infidelity clauses, the company says. Rodgers said that while AI infidelity is already being included in prenups, how they will be enforced in court remains to be seen.

"Physical infidelity is comparatively really easy to define. Emotional virtual infidelity with a chatbot is not," Rodgers said.

A study conducted by Indiana University's Kinsey Institute last year found 61% single adults surveyed said sexting or falling in love with an AI chatbot counted as cheating.

Lisa Zeiderman, a family attorney in New York, said the issue is already coming up in her work with clients seeking divorce who complain their spouse was spending more time with an AI companion than with them or their children.

Previously primarily about the handling of assets, couples are increasingly using prenups to set out their expectations for the marriage, according to Aaron Thomas, attorney and founder of Prenups.com, who said, "Couples are treating prenups like partnership agreements. If you're going into business with a partner, you lay out all the terms."

Infidelity clauses can be challenging to enforce even without the added question of a non-human lover, but some lawyers said they're seeing increased interest in them, with couples also expanding the definition of what might count as cheating.

An appeals court in Kentucky last month upheld a prenup and postnuptial agreement that defined cheating as, among other things, "any type of contact with any female" outside work, including phone calls, texts, emails, and interactions while playing video games.

"Increasingly, couples are defining emotional affairs to the best that they can as falling under infidelity," Thomas said, adding that human-AI relationships would be a logical continuation of that.

He thinks AI-infidelity clauses are likely to start appearing more in postnup agreements first, which commonly address issues that have already threatened the marriage.

Enforcing AI infidelity clauses could be a challenge

Elizabeth Yang, an attorney in California, said clients have asked her firm to include AI-infidelity clauses in prenups. The firm has discouraged them because of concerns about enforceability and the potential for future litigation.

Including AI infidelity in a prenup would require very careful wording, the lawyers said. Thomas said a workable provision would need three components: a definition of the prohibited behavior, a method for determining whether a breach occurred, and a stated financial consequence. As he put it, "a behavioral guardrail with a financial backstop."

Possible definitions could include spending more than a set dollar amount on an AI companion or exceeding a specified number of hours talking with a chatbot. The agreement would also need to say how a violation would be proven and what financial consequences would follow, like reduced alimony or a smaller share of assets.

The example provision for AI infidelity that Rodgers shared stipulated that if both parties agree one spouse had cheated, they would owe a specific dollar amount. It also included language that said if this part of the prenup was not enforceable, the rest of the document would still be valid.

Zeiderman said AI cheating could be addressed through wasteful-dissipation provisions, which cover marital money spent outside the marriage, including on romantic partners. Lawyers can use financial records to calculate the spending and seek to restore some of it to the marital estate, she said, adding that the same framework could theoretically apply to spending on an AI romantic companion.

"The AI companion charge is like the new mystery line item on the credit card statement," said Libby Leffler, founder and CEO of First, adding that five years ago it was OnlyFans and 10 years ago it was a gambling debt. "The format keeps changing, but the awkward discovery doesn't."

While spending might be easiest to measure, it may not capture the full harm of an AI affair. "If somebody can find a chatbot that's super cheap, but they're spending 20 hours a week going down the rabbit hole with this AI companion, that's still going to be hugely problematic for the couple or for the spouse that wants to stop that behavior," Thomas said.

Setting AI boundaries

Prenup lawyers say the benefits of drafting one with your partner go beyond the end result of the document.

With AI companions being so new, couples may not know where their partners stand on what's appropriate in a marriage. Maybe AI-generated porn is OK, but flirting with an AI companion with a name and face is not. Maybe the occasional sexting session with a chatbot is acceptable, but paying a hefty subscription for an ongoing relationship would be crossing the line.

Most prenups are never litigated, the lawyers said, noting that one of the points of the document is to avoid lengthy legal proceedings. Instead, the couple agrees to the terms in the prenup, and their lawyers use it to settle the terms of their divorce without a judge having to weigh in.

In some ways, they said the prenup is about more than enforceability during a divorce — it's about setting expectations for your marriage while you're married, so at least you're on the same page before either of you starts a new chat.

Do you have a story to share about AI infidelity? Contact this reporter at [email protected].