Court Rules that a Contract Between Husband and Wife that Provides for a Payment of Liquidated Damages if One of Them is Sexually Unfaithful to the Other is Unenforceable

Husband and Wife married in November 1988.  In 1993, Husband cheated on Wife.  When Wife learned of the affair, the parties separated but did not divorce. Instead, they agreed in writing to seek counseling to preserve their relationship.  Additionally, the agreement included an “Obligation of Fidelity,” and in the event of a breach (i.e., if one spouse cheats on the other), then the cheating spouse must pay liquidated damages to the other in the amount of $50,000.

Husband’s divorce lawyer drafted the agreement, and both parties signed voluntarily and resumed living together as husband and wife.

Five years later, Husband had another affair. Wife obtained an independent verification from a witness, who caught Husband kissing another woman. Husband and Wife separated and Wife retained a divorce lawyer to file for divorce. 

Wife hired a divorce lawyer and sued Husband for breach of contract, seeking to enforce the $50,000 liquidated damages clause. The divorce court did not enforce the agreement because it was contrary to the public policy underlying California’s no-fault divorce laws. Wife’s divorce lawyer appealed, but the Appellate Court affirmed.

In 1969, California enacted Civil Code Section 4506 (now Family Code Section 2310), which provided for a divorce based on irreconcilable differences that have caused the irremediable breakdown of the marriage. With certain exceptions, evidence of specific acts of misconduct is improper and not admissible in a divorce proceeding. Recovery in no-fault divorces is limited to half of the community property, appropriate spousal support, child support, and attorney fee orders.  There are “no hefty premiums for emotional angst.” 

Husband and Wife’s agreement imposes a prohibited premium for the “emotional angst” Husband caused Wife with his infidelity. 

The divorce court disagreed with Wife’s divorce lawyer and held that a divorce court may not look at fault in adjudicating a divorce, dividing property, or ordering support. The penalty in Husband and Wife’s agreement functionally assigns fault to Husband for his breaching the obligation of sexual fidelity, and is not enforceable to the extent it imposes upon Husband an obligation to pay Wife a liquidated damages penalty.

Diosdado v. Diosdado (2002) 97 Cal. App. 4th 470