Some Aspects of Marital Law Are Not Negotiable

Manual and Donna Diosdado married in 1988. They separated five years later when Donna accused Manual of having an affair. They reconciled, and part of their reconciliation was to enter into an agreement where each would remain in an exclusive relationship based on mutual trust and sexual and emotional fidelity. Examples of violations of the agreement included kissing someone else on the mouth or touching someone else in a sexual manner.

If the agreement were violated, penalties would be assessed. If the non-violating party filed for divorce, the violator would have to move out of the family home immediately, pay the attorney's fees of the non-violator, and pay the non-violator $50,000 above and beyond any property settlement and/or spousal support order.

Alas, their happiness did not last long. Within two years, Donna suspected Manual of cheating on her again, and she had a friend who corroborated her story. Donna filed for divorce and requested the Judgment be based on the agreement.

The trial court ignored the agreement and granted a Judgment based on the pleadings; in other words, whatever the parties were entitled to by law without their agreement.

Donna appealed. She argued that under the Bonds vs. Bonds case, parties in a marriage (or getting married) were allowed to make agreements in the event of divorce. (Bonds vs. Bonds is a very famous California case regarding a pre-nuptial agreement between then-Major League Baseball player Gary Bonds and his then-fiancée.)

The Appellate Court disagreed with Donna. Although there are certain aspects where parties can make separate agreements, they were not absolute. However, in this case, the Diosdado agreement was trying to regulate a party's fault. In 1969, California specifically excluded fault as a cause of action for a divorce; thus the term "no-fault divorce." To allow agreements to the contrary would be against public policy.

As a side note, Manual's attorney said that Manual never cheated on Donna. According to him, Donna just wanted the extra $50,000.

Marital agreements are very technical and should always be created with the help of a qualified family law specialist to ensure their enforceability.

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