Key Takeaways

  • An NDA for infidelity is often used to prevent reputational harm and protect personal or family interests, particularly in divorce or high-profile situations.
  • These NDAs may be challenged in court if they attempt to conceal illegal activity, are overly broad, or are signed under duress.
  • Infidelity NDAs must meet the same legal standards as business NDAs, including clear language, mutual consent, and consideration.
  • State laws vary; California, for example, limits the enforceability of NDAs that suppress facts about unlawful sexual conduct.
  • NDAs involving personal matters like affairs may also raise ethical or free speech concerns and should be carefully evaluated.

A legally binding non disclosure agreement (NDA) obliges a party to keep certain information confidential or face legal consequences. Protected information in an NDA can range from company practices and intellectual property to information that could negatively affect an individual's reputation like an extramarital affair.

NDAs are common in the business world. Employees and business partners are often required to sign an NDA to protect company trade secrets and intellectual property. NDAs can be used in a variety of cases where the receiving party's silence is wanted so long as the subject isn't being asked to remain silent about illegal activities.

NDAs are commonly used to protect:

  • Intellectual property that a company shares with employees, contractors, or partners.
  • Discussion of a new invention or a plan for a business with potential partners or investors.
  • Business trade secrets.
  • Knowledge of legal, but potentially character-damaging, information. Ex. an extramarital affair.
  • Knowledge of medical lab results by lab workers.

There are two basic types of NDAs:

  1. Mutual NDA. The parties on both sides of the agreement agree to not disclose a piece of information.
  2. Non-mutual NDA. Only one party is protected from disclosure.

NDAs need to have these elements:

  • "Disclosing" and "receiving" parties to the agreement.
  • Identification of what information is deemed confidential.
  • Scope of the agreement and specific requirements.
  • Exclusions from the agreement, e.g. information that is already common knowledge to the public or known independently by another party.
  • Length of agreement — most often between two and five years.

A party may sign an invalid NDA under the impression that it is valid. However, the real test of validity is when a party tries to enforce the agreement.

An attorney could challenge an NDA's enforceability in various scenarios. Here are some common challenges from attorneys:

  • When the terms of an NDA are too broad.
  • When the disclosing party doesn't maintain secrecy.
  • When the receiving party of the NDA has disclosed information to a third party, the NDA might not be enforceable against the third party.
  • When the information in the NDA would have been disclosed eventually regardless of whether the receiving party disclosed the information.
  • Unquantifiable damages. When attempting to enforce an NDA, it can be hard to determine how much a person's reputation is worth or the value of company trade secrets.

All the same general reasons that make a contract unenforceable apply to NDAs as well, including:

  • A party's lack of capacity to engage in a contract.
  • Duress or undue influence when agreeing to an NDA.
  • Protection of information about illegal activity.
  • A mistake made by either party.

Ways Out of a Non-Disclosure Agreement

Check if the NDA is stated in a clear and transparent manner. For the contract to be valid, both parties must agree to the same terms. If the terms are vague, you could potentially argue that the NDA is void.

If your NDA is verbal rather than in writing, you will probably be able to break it after a year per the Statute of Frauds.

The NDA could be void if it contains a misrepresentation, i.e. if the NDA contains affirmative untruths or if certain information isn't disclosed. For example, if the receiving party is promised work in exchange for signing the NDA but receives no work from the disclosing party, the receiving party may be able to get out of the NDA for misrepresentation.

If one party breaches the NDA, you might not need to comply with it. In this case, the breach needs to be serious for you to get out of your end of the contract. For example, two companies enter into a mutual NDA where both sides agree to protect each other's confidential information. Then the first company discloses the second company's confidential information to a third party. In this scenario, the first company has breached the NDA and the second company can get out of the agreement.

NDAs can also be terminated on mutual terms. You may ask the other party to end an NDA prematurely by writing a letter explaining why you should be released from the NDA. If the other party agrees to end the NDA, you would both sign a rescission agreement to have a written record of the NDA's termination.

If you break a non-disclosure agreement, the other party could sue you for breach of contract. Whether you're setting up an NDA or trying to get out of one, it's wise to seek the advice of a lawyer. Each NDA is unique, and a lawyer can help address legal questions.

NDAs for Infidelity and Personal Relationships

An NDA for infidelity is a type of non-disclosure agreement used to prevent one party—often a spouse or romantic partner—from publicly disclosing details of an affair. These NDAs may arise in situations such as:

  • High-profile marriages or relationships involving public figures or executives
  • Divorce or separation proceedings
  • Private settlements involving emotional or reputational stakes

Common Reasons for Using an Infidelity NDA:

  • Protecting reputation: Especially important for public figures, politicians, or business owners.
  • Avoiding emotional distress or public scandal: Especially when children or family members are involved.
  • Encouraging amicable separation or settlement: Sometimes used to expedite divorce without litigation.

Legal Validity of Infidelity NDAs

NDAs related to personal conduct are generally enforceable if they comply with basic contract principles. This includes:

  • Mutual consent and clear understanding of terms
  • Consideration (e.g., money or other benefit in exchange for confidentiality)
  • No coercion or duress
  • Lawful subject matter: The NDA cannot be used to hide criminal conduct or prevent legal testimony

For instance, a spouse may agree to sign an NDA during a divorce in exchange for a higher financial settlement or to avoid defamation claims. However, the NDA cannot prohibit reporting crimes like sexual assault or domestic abuse.

Legal Risks and Limitations of Infidelity NDAs

NDAs for infidelity walk a fine line between protecting privacy and suppressing truth. Courts may void them if they violate public policy. Some risks include:

  • Violation of free speech rights: Especially if one party attempts to prevent the other from discussing their own experiences.
  • Improper influence during divorce: Agreements signed under duress or emotional pressure may not hold up in court.
  • Attempting to conceal illegal activity: Courts won’t enforce NDAs that cover up criminal actions like abuse or harassment.
  • State-specific restrictions: Some states, such as California and New York, have laws that limit or void NDAs used to silence victims of unlawful sexual behavior​.

It's also important to note that even if legally drafted, an NDA for infidelity could still result in reputational fallout if breached, as legal remedies might not fully undo the public impact.

NDAs in Divorce Proceedings

In divorce settlements, NDAs can be incorporated to limit what parties may say about one another, especially when adultery or other sensitive issues are involved. These clauses might cover:

  • Allegations of infidelity
  • Details about asset division or alimony
  • Behavior that could affect custody decisions

When properly negotiated, an NDA may help both parties maintain privacy, protect children from public disputes, and avoid prolonged litigation​.

However, family courts may override such agreements if they believe public disclosure is in the best interest of a child or if one party demonstrates the agreement was unfairly obtained.

Frequently Asked Questions

  1. Can an NDA for infidelity be enforced in court?
    Yes, if the agreement meets contract law standards and does not attempt to conceal illegal activity.
  2. Are NDAs for affairs legal in divorce cases?
    Yes, they are often included in divorce settlements to keep personal matters confidential, but courts can void them if they are unfair or signed under duress.
  3. Can someone be forced to sign an NDA to stay silent about cheating?
    No. Any agreement signed under coercion or undue influence can be challenged and likely invalidated in court.
  4. Do infidelity NDAs violate free speech rights?
    Potentially, especially if the NDA is overly broad or tries to silence someone about their own experiences without adequate consideration.
  5. Is it legal to offer money for silence about an affair?
    Yes, offering financial compensation in exchange for confidentiality is legal if done voluntarily and without covering up a crime.

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