A cheating spouse may not need another person. This is due to the definition of infidelity that is starting to appear in prenuptial agreements.
Julia Rodgers, founder and CEO of Hello Prenups, told Business Insider that some clients are requesting prenups that extend things to include encounters with AI. Although she could not share specific customer terms, she did share an example that reflects what is used in actual customer agreements.
“Knowingly and intentionally engaging with an artificial intelligence (“AI”) chatbot, virtual companion, avatar, or similar AI-powered system for the primary purpose of establishing or maintaining a romantic or sexual relationship; This includes, but is not limited to, exchanging sexually explicit messages or images, engaging in sexual role-play or cybersex, expressing romantic love or exclusivity, or maintaining an ongoing intimate relationship that a reasonable person would consider romantic or sexual in nature. ”
The loneliness epidemic and the explosive growth of AI companion apps like Replika and EVA AI have led people to turn to chatbots to meet their emotional, romantic, and sexual needs. This includes people who already have close relationships with other humans.
Lawyers involved in prenuptial agreements told Business Insider that they are beginning to answer questions about how relationships with AI can be addressed in these agreements. Although few personally drafted the AI’s infidelity clause, some said the issue was a natural extension of a broader trend of couples redefining infidelity beyond sex with another person.
Although legal questions remain, one thing is certain: AI is giving couples one more boundary to define before they say “I do.”
Redefining “infidelity” including AI
HelloPrenup handles tens of thousands of prenuptial cases a year, and the company says one-third of them include an adultery clause. Rogers said AI adultery is already included in premarital sex, but it remains to be seen how it will be enforced in court.
“Physical infidelity is relatively easy to define, but emotional virtual infidelity with a chatbot is not,” Rogers says.
In a study conducted last year by the Kinsey Institute at Indiana University, 61% of single adults surveyed said sexting or falling in love with an AI chatbot would be considered cheating.
AI companion apps like Replika AI are growing. Olivier Drierly/AFP via Getty Images
Lisa Zeiderman, a New York family lawyer, said the issue has already come up in her work with clients seeking divorce who complain that their spouses spend more time with AI companions than they do with themselves and their children.
Aaron Thomas, an attorney and founder of Prenups.com, said prenups, which used to be primarily about dealing with assets, are increasingly being used by couples to clarify their expectations for the marriage. “Couples treat a prenup like a partnership agreement. If you’re going to do business with your partner, you set all the terms.”
Adultery clauses can be difficult to enforce without additional questions regarding non-human lovers, but some lawyers said there is growing interest in extramarital affairs clauses as they expand the definition that couples can also be considered cheating.
Last month, a Kentucky appeals court upheld a prenuptial and postnuptial agreement that defined infidelity as “contact of any kind with any woman” outside of work and included phone calls, text messages, emails and interactions while playing video games.
“More and more couples are increasingly defining emotional events as equating to infidelity,” Thomas said, adding that relationships between humans and AI would logically be an extension of that.
He believes AI infidelity clauses are likely to be the first to be included in postnuptial contracts, typically addressing issues that already threaten marriages.
Enforcing AI infidelity clauses could be difficult
California lawyer Elizabeth Yang said her clients are asking her firm to include a clause about AI infidelity in premarital agreements. The company discouraged their participation due to concerns about legal enforcement and the possibility of future litigation.
Lawyers said that including AI’s infidelity as premarital sex would require very careful wording. Thomas said an enforceable provision would require three elements: a definition of prohibited conduct, a method to determine whether a violation has occurred, and a clear statement of the financial consequences. In his words, they are “guardrails for action that are economically backed.”
Definitions could include spending more than a set amount on an AI companion or talking with a chatbot for more than a specified amount of time. The agreement must also specify how the violation will be proven and what financial consequences it will have, such as reduced alimony or a reduced share of assets.
An example of an AI infidelity clause shared by Rogers stipulated that if both parties agreed that one spouse had cheated, the spouse would be obligated to pay a certain amount. It also included language that said if this part of the prenuptial agreement was unenforceable, the rest of the document remained in effect.
The study found that 61% of single adults surveyed consider sexting or falling in love with a chatbot to be cheating. Artificial/Getty Images
Zuiderman said AI misconduct could be addressed by a waste clause that covers marital expenses outside the marriage, including spending on romantic partners. He said lawyers could use financial records to calculate expenses and ask that some of them be returned to the marital estate, adding that the same framework could theoretically apply to spending on an AI lover.
“AI companion charges are like the new mysterious item on your credit card statement,” said First founder and CEO Libby Leffler, adding that five years ago it was OnlyFans and 10 years ago it was gambling debt. “The format keeps changing, but the troubling findings remain the same.”
Measuring spending may be the easiest, but it may not capture the full harm of AI issues. “Even if someone were to find a super cheap chatbot and spend 20 hours a week down a rabbit hole with this AI companion, it would still be a huge problem for couples and spouses who want to stop that behavior,” Thomas said.
Set boundaries for AI
Prenup attorneys say the benefits of drafting a prenup with a partner go beyond the final document outcome.
Because AI companions are so new, couples may be unsure of the appropriate place for their partner in their marriage. Maybe AI-generated porn is OK, but flirting with an AI companion who has a name and a face is not. While the occasional sexting session with a chatbot might be acceptable, paying a high subscription for an ongoing relationship would cross the line.
Lawyers noted that most prenuptial agreements are not litigated and that one purpose of the documents is to avoid lengthy legal proceedings. Instead, the couple agrees to the terms of a prenuptial agreement, which lawyers use to work out the terms of their divorce without a judge’s intervention.
In a sense, they said, a prenup is more than just a force in a divorce, it’s about setting expectations for the marriage while you’re still married, so at least one of you is on the same page before starting a new chat.
Do you have a story to share about AI infidelity? Contact this reporter at kvlamis@businessinsider.com.