WHY THE COURT SHOULD UPHOLD PENALTY AGREEMENTS FOR INFIDELTITY

DONALD F. CONVISER, Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, serving divorce and family law clients in the Courts of Los Angeles and Ventura County for over 35 yers, discusses in this article reasons for his disareement with the DIOSDADO opinion addressed in yesterday's blog, entitled LEGAL CONSEQUENCES OF INFIDELITY IN A MARRIAGE.

In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between a husband and wife providing for payment of liquidated damages in the event one of them is sexually unfaithful to the other is unenforceable. The DIOSDADO Court addressed Marriage of WALTON (1972) 29 CA3d 108, 119, and FAMILY CODE Section 2310 (formerly CIVIL CODE Section 4506) as significant bases for its holding.

FAMILY CODE Section 2310 provides two grounds for dissolving a marriage: a) Irreconcilable differences which have caused the irremediable breakdown of the marriage; and b) Incurable insanity.

FAMILY CODE Section 2335 provides that in a pleading or proceeding for dissolution of marriage or legal separation, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible. In Marriage of WALTON, the Court stated that with certain exceptions (such as child custody matters or restraining orders), evidence of specific acts of misconduct is improper and inadmissible.

In DIOSDADO, the appellate court stated: "The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce."

In DIOSDADO, the appellate court stated that contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium [the agreed $50,000 liquidated damages consideration] for the emotional angst caused by huband's breach of his promise of sexual fidelity.

This writer disagrees with the DIOSDADO appellate court. Whereas this writer agrees that no fault need be shown to dissolve a marriage, he notes that a spouse's fault has been the basis of awards to the other spouse in many cases. This writer proposes that the court should distinguish between the no-fault ground to dissolve a marriage and fault (or contractual) grounds and evidence to justify awards to the other spouse in appropriate circumstances.

In DIOSDADO, the appellate court stated: "To be enforceable, a contract must have a lawful object [Civil Code Section 1550(3)]. A contract is unlawful if it is contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage [See FAMILY CODE Sections 2310 & 2315]. For that reason, the agreement is unenforceable."

In yesterday's blog post, this writer addressed Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, which held that the intent not to observe an obligation for sexual fidelity will support a finding of nullity based on fraud. The Court in that case addressed FAMILY CODE Section 720, which reads: Husband and Wife contract toward each other obligations of mutual respect, fidelity, and support.

Is that not, per language quoted in DIOSDADO, a contract which has a lawful object? [Civil Code Section 1550(3)]. Is that contract contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. No - it is an express provision of the law, it clearly expresses its policy, and it endeavors to enforce good morals.

In RAMIREZ, the appellate court annulled a marriage based on violation of that very contract. The DIOSDADO appellate court overlooked the significance of Civil Code Section 1550(3), and the fact that the parties had entered into a contract which had a lawful object.

The DIOSDADO opinion addressed Marriage of ASKEW (1994) 22 Cal.App.4th 942, 960, when it stated that fault is not a relevent consideration in the legal process by which a marriage is dissolved.

In ASKEW, husband sued wife in civil court based on wife's pre-marriage representations that she felt sexual attraction for him, and in reliance on her statement, he had married her and put certain parcels of real property in both of their names as Joint Tenants. 13 years and 2 children later, he sued her for fraud, negligent misrepresentation, breach of fiduciary duty, constructive trust, constructive fraud, accounting, cancellation of deeds, and intentional infliction of emotional distress, claiming that she never felt sexual attraction for him, and that her fraud justified imposing a constructive trust on her share of those properties.

The appellate court in ASKEW rightly denied relief to the husband, holding that his suit was essentially a breach of promise suit, precluded by the Anti Heart Balm statute, CIVIL CODE Section 43.5 [No cause of action arises for alienation of affection, criminal conversation, seduction of a person of the age of legal consent, and breach of promise of marriage].

ASKEW isn't relevant to the issue as to whether or not a contract providing for liquidated damages for violation of the marriage contract of fidelity should be enforced. ASKEW's statement as to fault was mere dicta, and needn't be followed.

The DIOSDADO contract had a legitimate purpose founded in a California Statute - to enforce the statutory marital contract obligation of fidelity, and consideration - $50,000 for violation.

Although fault has been eliminated as a basis for granting a dissolution of marriage, fault and consideration have not been eliminated as the basis for certain relief in divorce cases.
For instance, Prenuptial Agreements have been upheld by the Court.

If a spouse makes a gift of community property to his/her girlfriend, that could form a basis for an award to the other spouse pursuant to FAMILY CODE Section 721 [Fiduciary relationship of husband and wife, imposing a duty of the highest good faith and fair dealing on each spouse] and/or FAMILY CODE Section 1101 [Remedies for breach of fiduciary duty between spouses - a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, and the remedy could be 50% of the highest value at the date of the breach, the date of the sale/disposition, or the date of the award by the court, or, if the breach qualifies for punitive damages, 100% of such value(s)].

Fault provisions of the law which have supported awards or denials of awards in family cases include:

CIVIL CODE Section 1550(3), as recognized and used as the basis for relief awarding an annulment in Marriage of RAMIREZ & LLAMAS, supra.

FAMILY CODE Section 782: Injuries to a married person by his/her spouse, caused in whole or in part by the negligent or wrongful act or omission of the spouse - the Community Property may not be used to discharge the liability to make contribution to a joint tortfeasor until the tortfeasor's nonexempt separate property is exhausted.

FAMILY CODE Section 782.55, authorizing award to the injured spouse of the entire community property interest in retirement/pension benefits of the injured spouse when the other spouse is convicted of attempting to murder the injured spouse.

FAMILY CODE Section 721 - as addressed above, imposing the highest duty of good faith and fair dealing on spouses, that neither spouse shall take unfair advantage of the other.

FAMILY CODE Section 1100 and 1101 - as addressed above - Fiduciary Duties and Remedies for breach.

FAMILY CODE Section 4324: Award of support or benefits prohibited to a spouse convicted of attempted murder of the other spouse, whether or not actual physical injury occurred.

FAMILY CODE Section 4325: Rebuttable presumption affecting the burden of proof, that any award of temporary or permanent support shall not be made to an abusive spouse convicted of Domestic Violence against the other spouse.

And consider the punitive effects of a BIFURCATION OF MARITAL STATUS, addressed in my April 28, 2009 blog entitled THE POUND OF FLESH REQUIRED FOR BIFURCATION.


Whereas this writer takes no issue with the proposition that fault not be a basis for granting a divorce, fault and/or legitimate objects of contracts beween the parties should form the basis of relief in Family Law Court.

This writer would hope that the next appellate court to address enforcement of a contract between spouses providing for liquidated damages for sexual infidelity in a marriage will consider the facts, authorities and arguments addressed in this post, and welcomes inquiries and comments regarding this post.