Infidelity is a leading cause of divorce. It is also a potential source of personal trauma for the spouse who discovers the infidelity.
People worried about infidelity sometimes include special clauses in their prenuptial agreements imposing penalties for adultery. Spouses trying to save a marriage after an affair may sign a postnuptial agreement. That marital contract could also include a penalty clause that punishes either spouse for being unfaithful.
If one spouse discovers infidelity and decides to pursue a divorce, can they rely on the California courts to enforce a penalty clause in a litigated divorce scenario?
California only offers no-fault divorces
In some states, spouses can pursue fault-based divorce litigation. Provided that they have evidence of certain types of misconduct, including infidelity, they can ask the courts to declare the other spouse at fault for the divorce. That fault could then impact decisions related to property division and financial support obligations.
However, California only allows for no-fault divorces. As such, marital misconduct rarely influences the outcome of a litigated divorce. Judges in California may choose to ignore penalty clauses in litigated divorces where there is a marital agreement on record.
That being said, the spouses could theoretically pursue an uncontested divorce in which they uphold the terms of a penalty clause through mutual agreement. However, given that divorce often occurs at a point when the relationship between the spouses has significantly declined, the spouse who cheated may not voluntarily agree to uphold the penalty clause in the initial agreement.
Understanding the rules that govern prenuptial agreements and divorce proceedings can help people as they negotiate marital contracts or prepare for divorce. Penalty clauses can serve as deterrents in some cases but will not necessarily influence the outcome of divorce proceedings.