Diosdado v. Diosdado

In Diosdado v. Diosdado (2002) 97 Cal.App.4th 470, husband and wife entered into a written agreement wherein each promised to remain faithful to the other; the agreement also provided for $ 50,000 liquidated damages, to be paid upon dissolution of the marriage, should either spouse breach the agreement. The court adopted the reasoning of the trial court that the agreement was not enforceable "because it was contrary to the public policy underlying California's no-fault divorce laws." ( Id. at p. 473.) The court noted that since the 1969 enactment of Civil Code section 4506 (now Fam. Code, 2310), "fault is simply not a relevant consideration in the legal process by which a marriage is dissolved. Recovery in no-fault dissolution proceedings 'is basically limited to half the community property and appropriate support and attorney fee orders--no hefty premiums for emotional angst.' " ( Diosdado v. Diosdado, supra, 97 Cal.App.4th at p. 474.) The Diosdado court concluded the liquidated damage clause "attempted to impose just such a premium for the 'emotional angst' caused by husband's breach of his promise of sexual fidelity." (Ibid.) As such, the contract had an unlawful object and was invalid under Civil Code section 1667. (Diosdado, at p. 474.)