The Surprising Limits of Premarital Agreements: Unfaithfulness Clauses and Public Policy

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When it comes to premarital agreements (prenups), many believe they can include any clause they want. However, a surprising legal boundary exists: certain clauses can be unenforceable if they contradict public policy.

Understanding Diosdado v. Diosdado: A Legal Analysis

Introduction: The case of Diosdado v. Diosdado is a pivotal one in understanding the limits of what can be included in premarital agreements, specifically regarding clauses tied to personal behavior such as infidelity.

Case Background: In Diosdado v. Diosdado, the premarital agreement included a clause where the husband agreed to pay $450,000 if he was found to be sexually unfaithful. The case came to court when this clause was contested.

Legal Analysis:

  1. The Infidelity Clause: This clause was central to the dispute. The husband was contractually bound to pay a significant sum in the event of his infidelity.

  2. Court's Ruling: The court ruled that this clause was unenforceable. The decision was based on the principle that such a clause contradicts public policy.

  3. Public Policy Considerations: Public policy in family law aims to uphold fairness and mutual respect. A clause that imposes a financial penalty for personal behavior like infidelity is seen as contradictory to these principles. It's perceived as punitive rather than protective of mutual marital interests.

  4. Implications for Premarital Agreements: This ruling underscores that not all terms agreed upon by parties in a premarital agreement will be enforceable. Clauses that are seen as promoting disharmony, or are punitive in nature, particularly regarding personal behaviors, are likely to be struck down as against public policy.

Conclusion: Diosdado v. Diosdado serves as a crucial reminder that while premarital agreements offer a way to pre-plan aspects of marital dissolution, they are not a carte blanche. The enforceability of their terms is subject to legal scrutiny, particularly through the lens of fairness and public policy. This case highlights the importance of consulting legal expertise in drafting such agreements to ensure that they align with legal standards and ethical considerations.