POSTNUPTIAL AGREEMENTS - UW Law School

WILLIAMS - FINAL 11/29/2007 4:07 PM
836 WISCONSIN LAW REVIEW
penalties if one spouse commits adultery. 38 Although some courts have
viewed these agreements as an inappropriate attempt to return faultbased
concepts to divorce, 39 other courts have concluded that public
policy permits spouses to make such clauses, as long as the issues are
amenable to judicial determination. 40
The timing of postnuptial agreements is as varied as their subject
matter. Postnuptial agreements can occur at any time during the course
of a marriage. Case law shows that they can be signed anytime from
two hours after the ceremony 41 to twenty years into a marriage. 42 Many
postnuptial agreements began as prenuptial agreements, but the spouses
did not sign the final agreement until after the wedding. 43 Even if
spouses successfully negotiate an agreement before their wedding, they
may modify the agreement during their marriage. 44 Other postnuptial
38. Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494, 495–96 (Cal. Ct. App.
2002) (postnuptial agreement provided for $50,000 adultery penalty); Hall v. Hall, No.
2021-04-4, 2005 WL 2493382, at *4 (Va. Ct. App. Oct. 11, 2005) (postnuptial
agreement provided that the wife would waive $2,500 per month alimony if the
husband could prove that she committed adultery); Laudig v. Laudig, 624 A.2d 651,
652 (Pa. Super. Ct. 1993) (reconciliation agreement where wife forfeited all claims to
marital property in case she was unfaithful in exchange for a small amount of cash and
alimony); see also Shultz, supra note 1, at 322–23 (arguing that couples could contract
for liquidated damages in the event of a breach of a marital agreement).
39. See, e.g., Diosdado, 118 Cal. Rptr. 2d at 496 (refusing to enforce
prenuptial agreement providing for $50,000 adultery penalty because “this agreement
attempts to penalize the party who is at fault for having breached the obligation of
sexual fidelity, and whose breach provided the basis for terminating the marriage. This
penalty is in direct contravention of the public policy underlying no-fault divorce”).
40. See, e.g., Hall, 2005 WL 2493382, at *1–2 (holding that adultery was
within the scope of allowable discovery when postnuptial agreement included a penalty
clause if the husband provided a “photographic or video representation of adultery; or a
finding of guilty of adultery in a court of law” to prove that his wife committed
adultery again).
41. See, e.g., Tibbs v. Anderson, 580 So. 2d 1337, 1338 (Ala. 1991)
(husband presented a prenuptial agreement on eve of wedding, which the wife signed
two hours after the ceremony).
42. See, e.g., In re Marriage of Richardson, 606 N.E.2d 56, 57–58 (Ill. App.
Ct. 1992) (couple entered into postnuptial agreement twenty years into their marriage
and divorced four years later).
43. See, e.g., Nesmith v. Berger, 64 S.W.3d 110, 113–14 (Tex. App. 2001)
(couple agreed before marriage that “they would execute a postnuptial agreement,
which they did”); Bronfman v. Bronfman, 229 A.D.2d 314, 315 (N.Y. App. Div.
1996) (college sweethearts entered agreement after civil ceremony but before religious
ceremony; In re Estate of Lewin, 595 P.2d 1055, 1056–57 (Colo. Ct. App. 1979)
(elderly man consulted attorney about prenuptial agreement, and the couple signed
postnuptial agreement two months after the wedding); Colvin v. Colvin, No. 13-03-
00034-CV, 2006 WL 1431218, at *1 (Tex. App. May 25, 2006) (couple drafted
agreement before marriage but did not finalize it until after marriage).
44. See Stackhouse v. Zaretsky, 2006 PA Super. 108, 3, 900 A.2d 383, 385
(modifying prenuptial agreement two years into marriage); Sheshunoff v. Sheshunoff,