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679

ADULTERY PROVISIONS IN MATRIMONIAL

AGREEMENTS

ELIZABETH R. CARTER

Can a contract discourage your spouse from cheating or compensate you for

a broken heart? Adultery penalties in marriage contracts seek to do exactly that.

An adultery penalty is a financial penalty in a marriage contract triggered by a

spouse’s infidelity. While many practitioners advise clients against adultery

provisions in marriage contracts, some clients demand them. However, are

adultery provisions enforceable? Should they be? This Article considers the socio-

legal history of adultery and provides new insight into the enforceability and

wisdom of adultery penalties. This Article also provides novel arguments that

adultery provisions should not be enforced and calls upon courts to consider the

issue more thoughtfully.

TABLE OF CONTENTS

Introduction ................................................................................. 680

I. The Evolving Role of Adultery in American Law ............ 681

A. Adultery’s Historical Roots ........................................ 682

B. Adultery Damages and Public Policy ........................ 686

1. The amatory (heart balm) torts and their

decline ................................................................... 687

2. Adultery and the intentional infliction of

emotional distress ................................................. 691

3. Adultery in the divorce setting ............................. 696

C. What Specific Acts Constitute Adultery? .................. 703

* Elizabeth R. Carter, Director of Graduate Certificate in Estate Planning and

Taxation, A.N. Yiannopoulos, Judge Anthony J. Graphia & Jo Ann Graphia Professor

of Law, Louisiana State University. B.A., B.S. University of Memphis, J.D., Tulane University,

LL.M., University of Alabama. Academic Fellow of the American College of Trusts and

Estates Counsel. Queen Tucks LVI. The Author thanks Professors Summer Chandler,

Tom Galligan, and Kaipo Matsumura for their input on this Article.

680 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

II. Are Adultery Penalties Enforceable? ............................... 708

A. Adultery Provisions Are Unenforceable in Some

Jurisdictions ................................................................ 708

B. Adultery Penalties Are Generally Enforceable in

Some Jurisdictions ..................................................... 709

C. Some Ancillary Issues ................................................. 711

1. Evidentiary standards ........................................... 711

2. Adultery is not a basis for invalidating a

marriage contract or a contractual spousal

support or property award ................................... 714

III. Should Adultery Penalties be Enforceable? .................... 716

A. Unconscionability ...................................................... 717

B. Public Assistance ........................................................ 723

C. General Limitations on Liquidated Damage

Awards ......................................................................... 724

Conclusion ................................................................................... 727

INTRODUCTION

Marriage is a uniquely risky contractual relationship. Failure rates

are notoriously high, and failure is often accompanied by financial and

emotional hardship. Even enduring marriages may bring financial and

emotional hardship to one or both spouses. A host of laws seek to

mitigate against the risk of financial hardship. Community property

laws, equitable distribution laws, and spousal support awards can offer

some protection from financial hardship. Spouses are also free to craft

personalized matrimonial agreements that stipulate the financial

consequences of a marriage or its failure.

But, what about the emotional risks of marriage? Adultery, and its

attendant emotional hardship, is a routine cause of marriage failure in

the United States. Can spouses protect themselves against the

emotional harms of adultery by discouraging it in a marriage contract?

Can a financial penalty in a marriage contract that is tied to adultery

compensate a jilted spouse for their heartache? Adultery penalties in

marriage contracts seek to do exactly that. Adultery penalties attach a

financial penalty to a spouse’s infidelity. Clients sometimes demand

adultery penalties, often over the sound advice of counsel advising

2024] ADULTERY PROVISIONS 681

against such penalties.

This Article considers the socio-legal history of

adultery and argues that adultery penalties should be unenforceable.

This Article proceeds as follows. Part I outlines the evolution of the

role adultery plays in American law and shows that American law has

generally retreated from allowing financial recovery for the emotional

harms caused by adultery. Part II compares two major lines of

jurisprudence relating to adultery penalties and considers some

ancillary issues relating to adultery penalties. Part III provides novel

arguments for refusing to enforce adultery penalties even in

jurisdictions that have traditionally permitted them.

I. THE EVOLVING ROLE OF ADULTERY IN AMERICAN LAW

Adultery is a term of legal significance with a long and colorful

history. Adultery not only is the oldest and most widely agreed upon

basis for divorce, but it also gave rise to civil and criminal penalties

throughout much of history.

The historical roots of adultery

prohibitions reveal heteronormative and patriarchal views of sexuality

and morality.

Prohibitions of adultery were usually imposed and

regulated by men, often to the disadvantage of women.

Men were

generally punished less severely than women for similar sexual

transgressions, if they were punished at all.

But, why? This Part traces

the origins of and the declining role of adultery in American law. In

the modern era, courts are less enthusiastic to punish adulterers, a

policy view with important implications for the enforceability of

adultery penalties in marriage contracts. This Part also highlights the

evolving legal definition of adultery, how it has been shaped by

patriarchal and heteronormative notions of gender and sexuality, and

. See, e.g., 20 FRANK L. MCGUANE, JR. & KATHLEEN A. HOGAN, COLORADO PRACTICE

SERIES: FAMILY LAW & PRACTICE § 39.6 (2d ed. 2022) (advising against adultery penalties

because they “may be unworkable based on difficulties of proof and would infuse any

future divorce with a level of animosity which most prenuptial agreements strive to

avoid”).

. See discussion infra Section I.A (discussing the historical evolution of adultery).

. See discussion infra Section I.A (exploring the connection between societal

views on adultery and gender roles).

. See discussion infra Section I.B.1 (highlighting how women have historically

suffered greater fallout from adultery than men).

. See discussion infra Section I.A (emphasizing that the consequences of

adulterous behavior have traditionally followed a heteronormative approach where

women are penalized to a greater extent than men).

682 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

explores the somewhat narrow legal definition of adultery adopted by

courts.

A. Adultery’s Historical Roots

Religious views of sexual morality—particularly patriarchal Judeo—

Christian views—influenced most western legal traditions.

Religious

tradition treated women as property belonging to men—women

belonged first to their fathers and then to their husbands.

That

tradition also viewed most expressions of female sexuality and sexual

desire as dangerous, shameful, and sinful.

Adultery was a gendered

crime in religious tradition—it always required the involvement of a

married woman.

The marital status of the married woman’s male

lover, however, was irrelevant; it was the marital status of the woman

that made adultery such a serious crime.

The usual punishment for

adultery was death, for both the married woman and her male lover.

However, a man, married or unmarried, faced little or no

consequences for having sex with an unmarried woman.

Adultery retained gendered distinctions in most western legal

traditions.

Common law partly left regulation of marriage, adultery,

. See, e.g., Steven R. Morrison, Creating Sex Offender Registries: The Religious Right

and the Failure to Protect Society’s Vulnerable, 35 AM. J. CRIM. L. 23, 32 (2007) (“It can

scarcely be denied that biblical sexual prohibitions have had a major effect on Western

law.”).

. Angela L. Padilla & Jennifer J. Winrich, Christianity, Feminism, and the Law, 1

COLUM. J. GENDER & L. 67, 75 (1991).

. See id. at 73 (analyzing Christianity’s impact on gender roles and society’s

understanding of how those roles manifest sexually); see also ISABEL DRUMMOND, THE

SEX PARADOX 8 (1953) (asserting that negative societal views around women’s sexuality

contribute to the disproportionate consequences women face from adultery).

. EDWARD J. WHITE, THE LAW IN THE SCRIPTURES: WITH EXPLANATIONS OF THE LAW

TERMS AND LEGAL REFERENCES IN BOTH THE OLD AND THE NEW TESTAMENTS 134–35

(1935).

. Id.

. See John Witte Jr., Church, State, and Sex Crimes: What Place for Traditional Sexual

Morality in Modern Liberal Societies?, 68 EMORY L.J. 837, 839 (2019) (explaining the

connection between sexual behavior and religious norms); see also 1 MARCEL PLANIOL

& GEORGE RIPERT, TREATISE ON THE CIVIL LAW ch. IX, § 900 (La. State L. Inst. trans.,

12th ed. 1959) (1939) (outlining different punishments for men and women who

commit adultery).

2024] ADULTERY PROVISIONS 683

and similar matters in the hands of the Church.

On the one hand,

the Church took a broader view of adultery than biblical law and

considered it a breach of the marital vow regardless of the married

person’s gender.

On the other hand, many of the Church’s teachings

and practices continued to reinforce negative patriarchal views of

women and female sexuality.

Where common law, rather than

ecclesiastical law, governed, the harms of adultery remained gendered,

focused largely on the role of women as the property of their

husbands.

Under common law, the married woman’s adultery gave

her husband a civil action against the other man that aimed to

compensate the husband for the risk that the wife would become

pregnant with spurious offspring for which the husband would be

responsible.

The wife had no comparable right against her husband’s

mistress.

More generally, the common law’s merger theory of

marriage clearly embraced the notion that a wife becomes her

husband’s property at marriage.

The civil law tradition likewise drew on the gendered roots of

religious tradition.

French law, for example, imposed harsher

criminal penalties on a wife’s adultery than on the husband’s

. See Witte, supra note 13, at 847 (exploring how religious institutions controlled

sex and sexual activity using shame and stigma against women).

. Peter Nicolas, The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples

and Same-Sex Conduct, 63 FLA. L. REV. 97, 106 (2011).

. See DRUMMOND, supra note 8, at 9–10 (describing the ways women were

categorized and perceived at this time: the virgin who does not fall prey to temptation

and the sex worker who is “man’s refuge from the idealized female”); Padilla &

Winrich, supra note 7, at 76–89 (explaining how the Bible creates gendered stereotypes

about women and their sexuality); Witte, supra note 13, at 847, 853 (noting a host of

biblical sex crimes that were codified into early laws).

. Nicolas, supra note 15, at 106.

. Id. at 107.

. Danaya C. Wright, Untying the Knot: An Analysis of the English Divorce and

Matrimonial Causes Court Records, 1858–1866, 38 U. RICH. L. REV. 903, 973–74 (2004).

. See Elizabeth R. Carter, The Illusion of Equality: The Failure of the Community

Property Reform to Achieve Management Equality, 48 IND. L. REV. 853, 861 (2015)

(highlighting the merger theory: “marriage resulted in the legal merger of the

husband and wife into a single individual under the law”).

. See PLANIOL & RIPERT, supra note 13 (describing the different punishments for

adultery for husbands and wives); see also Lucy A. Sponsler, The Status of Married Women

Under the Legal System of Spain, 42 LA. L. REV. 1599, 1619–22 (1982) (exploring how early

adoptions of civil law in Spain permitted husbands to murder their adulterous wives);

GUSTAVUS SCHMIDT, THE CIVIL LAW OF SPAIN AND MEXICO § 68 (1851) (explaining how

wives were to lose their property if they committed adultery).

684 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

adultery.

The unfaithful husband might face a criminal fine,

meanwhile the unfaithful wife could be imprisoned for two years.

Any

extramarital sex by the wife was considered adulterous.

The

husband’s extramarital dalliances, however, could only be penalized if

he brought his mistress into his marital home.

Spanish law was

similarly forgiving of a husband’s affairs:

the Spanish wife’s adultery

deprived her of any rights to the couple’s community property, while

the unfaithful husband faced no such consequences.

The legal landscape of adultery was complicated in the colonies, and

later in the United States. Drawing on religious tradition, many states

imposed civil and criminal penalties on adultery, fornication, and

other sexual acts.

Furthermore, following the common law and

biblical approach, some states continued to treat adultery as a

gendered act

and required a married woman.

In the absence of a

married woman, extra-marital sex was usually deemed the lesser

offense of fornication.

Other states adopted the less gendered

definition of adultery used by the ecclesiastical law in England.

Louisiana imported its gendered views from Spanish and French

sources.

Spanish views likewise took hold in some former Spanish

territories, like Texas and New Mexico.

Western jurists and legal scholars—who were almost always male—

routinely explained adultery in patriarchal terms that treated women’s

. PLANIOL & RIPERT, supra note 13, §§ 899–900.

. Id. § 900.

. Id.

. Sponsler, supra note 21, at 1619–22.

. SCHMIDT, supra note 21.

. Nicolas, supra note 15, at 108.

. Id.

. See, e.g., LA. CIV. CODE ARTS. 136–37 (1825) (allowing the husband to seek a

separation based on the wife’s adultery, but only allowing the wife to seek separation

when the husband kept his mistress in the marital home).

. See Barnett v. Barnett, 50 P. 337, 338 (N.M. 1897) (asserting that certain U.S.

territories would adopt Spanish laws related to marriage and community property);

Wheat v. Owens, 15 Tex. 241, 245–46 (1855) (noting that while a man may only be

fined for adultery, whereas a woman could be confined to a monastery for the rest of

her life and lose all her property).

2024] ADULTERY PROVISIONS 685

sexuality and ability to have children with suspicion.

Where adultery

remained an explicitly gendered concept, jurists and scholars often

pointed to biblical sources and the potential for spurious children as

justification for the differing treatment of men and women.

The

concern for spurious offspring, a concern also seen in biblical

teachings, punishes women for their biology and for a society limiting

their property rights—two things women had little control over in the

first place.

Men easily overlooked the obvious. French scholar Marcel Planiol,

for example, outright rejected the notion that the harsher treatment

of women for committing adultery was a result of men writing the

laws.

Rather, he argued “[t]he adultery of the wife can have much

more dangerous moral and physical consequences than that of the

husband” because the wife’s pregnancy brought children into the

. See, e.g., Lynn v. Shaw, 620 P.2d 899, 900–01 (Okla. 1980) (footnote omitted)

(“The right of the husband to maintain an action against a third party for either

criminal conversation or adultery is founded on the common law conception of the

husband’s property right in his wife. The basis for the husband’s right of action for

loss of consortium is premised on the idea that the wife was her husband’s servant

because an interference with the service of a servant is an actionable trespass.”); accord

Neal v. Neal, 873 P. 2d 871, 874 (Idaho 1994) (examining the view that wives were

property in a similar way to horses and were thus not “capable of giving a consent that

would prejudice the husband’s interest” (quotations marks omitted) (quoting W.

PROSSER, LAW OF TORTS § 124 (4th ed. 1971))). Note that some sources use the term

“criminal conversation” rather than “criminal conversion” to refer to this tort. The two

terms appear to have the same meaning.

. See PLANIOL & RIPERT, supra note 13, § 900 (justifying the difference in penalties

for adultery by the wife versus the husband by arguing that the potential for the wife

to have a child with her lover would “compromise[] the base upon which the legitimate

family rests”); see also Nicolas, supra note 15, at 106 (describing how English common

law on adultery remained consistent with Biblical law); In re Blanchflower, 834 A. 2d

1010, 1011–12 (N.H. 2003) (explaining the gendered nature of 1800’s New

Hampshire criminal and civil law), overruled by In re Blaisdell, 261 A.3d 306, 306 (N.H.

2021); State v. Bigelow, 92 A. 978, 978–79 (Vt. 1915) (comparing the common law and

ecclesiastical definitions of adultery). See generally State v. Lash, 16 N.J.L. 380 (N.J.

1838) (opining on the legal construction to the term adultery when a statute did not

define what constituted the offence).

. See, e.g., Lash, 16 N.J.L. at 388–89 (discussing how adultery is “criminal

intercourse with a married woman, which exposes her husband to support and provide

for another man’s issue” in contrast to if a husband becomes unfaithful, how a wife

“cannot maintain an action of adultery against him or his paramour” because “such

infidelity does not adulterate her issue, nor his own; it brings no ones inheritance into

jeopardy, nor can it possibly produce a spurious heir to disturb the descent of real

estates”).

. PLANIOL & RIPERT, supra note 13, § 900.

686 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

husband’s family.

Women were not punished because men wrote the

laws; women were punished because of their own biology and the law’s

insistence on male preference in property rights and earning

capacity.

These views were also popular with American jurists. In

refusing to apply an adultery statute to a married man who had sex

with an unmarried woman, the Minnesota Supreme Court determined

in 1860 that the “gist of the crime [of adultery] . . . is the danger of

introducing spurious heirs into a family[.]”

The ability of a wife to

adulterate the husband’s line of inheritance, the court argued, “is

much more aggravated in its nature [] than the simple incontinence

of a husband[.]”

Though extra-marital affairs by men and women

were “equally heinous” offenses against the marriage, it was the

possibility of a married woman’s pregnancy that made her affair more

criminally culpable than the husband’s.

Similarly, the Illinois

Supreme Court, in a 1901 decision involving a divorce, opined that the

adultery of the wife is the most morally reprehensible action justifying

divorce because “the effect . . . may be to introduce into the family

circle a spurious offspring and a false heir to divide and share in the

patrimony of those the true blood.”

These views perpetuated the

general societal and legal mistrust of women and female sexuality.

B. Adultery Damages and Public Policy

American courts and legislatures traditionally considered marital

fidelity and the sexual relationship between spouses to be public policy

concerns.

This is hardly surprising considering that breach of the

. Id.

. Bernie D. Jones, Revisiting the Married Women’s Property Acts: Recapturing

Protection in the Face of Equality, 22 J. GENDER SOC. POL’Y & L. 91, 112–16 (2013)

(explaining how the Women’s Married Property Act in the United States helped reveal

and set off an academic discussion around the historical role of women in society

regarding property rights and challenged the idea that “[t]he public sphere of law was

within the purview of the male sphere, where husbands would represent the legal

identity of the household: a man with dependents, his wife and children”).

. State v. Armstrong, 4 Minn. 335, 341 (1860) (per curium).

. Id.

. Decker v. Decker, 61 N.E. 1108, 1110 (Ill. 1901).

. See, e.g., Favrot v. Barnes, 332 So. 2d 873, 875 (La. App. 4th Cir. 1976) (holding

that the obligation of fidelity is a matter of policy that cannot be altered by the spouses

because “[i]t is this abiding sexual relationship which characterizes a contract as

marriage”), rev’d on other grounds, 339 So. 2d 843, 843 (La. 1976); Owen v. Bracket, 75

2024] ADULTERY PROVISIONS 687

obligation of fidelity could be met with civil and criminal penalties. In

the divorce setting, an adulterous spouse might be denied spousal

support and child custody.

Adultery also gave rise to various tort

remedies for the aggrieved spouse.

Adultery could also be prosecuted

as a sex crime in much of the United States.

The extent to which adultery and marital fidelity remain public

policy concerns today has important implications for the enforceability

of adultery penalties in marriage contracts. American law has generally

retreated from its historical views of marital fidelity.

The landscape

across the country, however, is complicated. Two developments in the

law highlight the evolution of legal thinking in this arena: the decline

of the amatory torts and the evolution of the role of fault, including

adultery, in the divorce setting. Each is considered below.

1. The amatory (heart balm) torts and their decline

The public policies of marital fidelity and women’s sexual purity

gained footing in American tort law. The amatory torts clearly drew

from the same patriarchal well of legal thinking that shaped early

adultery laws. Compensatory and punitive damages for the emotional

and reputational harms caused by amatory torts

were often based on

Tenn. 448, 448–49 (1881) (arguing that a statute prohibiting marriage between two

people who engaged in an adulterous affair “accords with public policy, is predicated

of common sense, and tends to assure a decent propagation of the human race”).

. See discussion infra Section I.B.3 (recognizing that there is a modern trend in

American divorce law away from financial penalties for adultery).

. See discussion infra Section I.B.1 (explaining how amatory torts were shaped by

perceptions of women’s limited value outside of the benefit they provided to men).

. See Ephraim Heiliczer, Dying Criminal Laws: Sodomy and Adultery from the Bible to

Demise, 7 VA. J. CRIM. L. 48, 64–69 (2019) (discussing the criminalization of adultery in

early American history).

. Katherine Shaw Spaht, The Last One Hundred Years: The Incredible Retreat of Law

from the Regulation of Marriage, 63 LA. L. REV. 243, 243 (2003).

. The four torts generally known as the amatory torts are: (1) alienation of

affections (when a third party causes estrangement between spouses); (2) criminal

conversion (when a third party has an adulterous relationship with a plaintiff’s wife);

(3) seduction (when an unmarried woman sues for damages based on a social injury

that resulted from premarital sex or unwed motherhood); and (4) breach of marriage

promise (when a promise of future marriage prompted a woman to engage in sexual

behavior that she would not have, but for the promise and expectation of marriage).

Deana Pollard Sacks, Intentional Sex Torts, 77 FORDHAM L. REV. 1051, 1058 n.29 (2008).

688 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

the fundamental premises that women were the property of men and

that a woman’s value was based on her desirability to men.

Breach of promise to marry, for example, was a hybrid tort-contract

remedy that came to America from ecclesiastical law.

The injury

stemmed from a breached contract, but the damages awarded by

American courts sounded in tort.

Not only could the aggrieved

would-be bride (or her parents) recover actual expenses put towards

planning the wedding, but damages were awarded on account of the

woman’s diminished prospects on the marriage market and in society

because the breached engagement turned her from a marriageable

virgin into damaged goods.

Damages for mental distress were also

allowed, but these damages tended to reinforce the notion that a

woman’s primary value was as a wife or virgin daughter.

Breach of promise to marry claims were sometimes brought

alongside seduction claims, and the damages in both cases shared

many of the same justifications.

The tort of seduction allowed an

unmarried woman’s parents, and sometimes the woman herself, to

recover damages against a man who induced her into a sexual

. See R. KEITH PERKINS, DOMESTIC TORTS § 8:1,6 (2023) (adding that a North

Carolina jury awarded a million dollar verdict in an alienation of affection suit against

a husband’s secretary).

. See Gilbert v. Barkes, 987 S.W.2d 772, 773 (Ky. 1999) (explaining that marriage

was viewed as a property transaction); Waddell v. Briggs, 381 A.2d 1132, 1134–35 (Me.

1978) (explaining how breach of contract theories historically intersected with tort

liability theories in breach of promise to marry actions).

. Stanard v. Bolin, 565 P.2d 94, 96 (Wa. 1977) (en banc).

. See, e.g., Goldstein v. Young, 23 So. 2d 730, 730 (Fla. 1945) (per curiam)

(reducing damages awarded to a previously divorced woman who was “well into her

forties” because there was no evidence the breach affected the woman’s “future

prospects of marriage, her social position or her reputation”); Stanard, 565 P.2d at 96

(discussing damages for “loss to reputation, mental anguish . . . and loss of the

pecuniary and social advantages which the promised marriage offered”).

. See, e.g., Waddell, 381 A.2d at 1135 (describing damages for “shame and

mortification”); Menhusen v. Dake, 334 N.W.2d 435, 436 (Neb. 1983) (noting that

damages for breach are based on the “plaintiff’s mental suffering, wounded pride,

humiliation, pain, and mortification; and the loss of the pecuniary benefits of the

promise to marry”).

. See, e.g., Kralick v. Shuttleworth, 289 P. 74, 78 (Idaho 1930) (noting that the

“two actions involve separate parts of what may be one transaction, and one is not

necessarily a bar to the other”).

2024] ADULTERY PROVISIONS 689

relationship predicated on a false promise that he would marry her.

Initially, damages in seduction cases were based on the loss to the

father of the daughter’s services while she was pregnant, a view rooted

in the notion that daughters were the property of their fathers.

As the

tort evolved in American courts, the lost services of the daughter were

a less important measure of damages than the shame her sexual

relationship brought to her father.

Damages could “be recovered for

all that the parent may suffer by the ruin of the daughter, and the

disgrace to the family.”

Criminal conversion gave a husband a right of action against a man

who had sex with the husband’s wife.

The theory of recovery was

premised entirely on the wife’s status as the husband’s property.

The

wife’s consent or even instigation of the affair was immaterial.

The

husband’s consent was the only affirmative defense to a criminal

conversion claim.

Damages stemmed from the husband’s property

rights in his wife, her body, and her sexuality. The U.S. Supreme Court

explained “the essential injury to the husband consists of the

defilement of the marriage bed, in the invasion of his exclusive right

to marital intercourse with his wife and to beget his own children.”

Alienation of affections was essentially the same tort as criminal

conversion, sharing the same essential elements and measures of

damages.

Even as criminal conversion and alienation of affections evolved into

actions that could be pursued by either the husband or the wife,

. See ELIZABETH R. CARTER, LOUISIANA FAMILY LAW IN COMPARATIVE PERSPECTIVE

105 (2018) [hereinafter LOUISIANA FAMILY LAW] (describing elements of the common

law tort of seduction and grounds for recovery); see also Sacks, supra note 50, at 1057

(discussing how seduction harmed a woman’s father because it led to his inability to

“marry off” his daughter (internal quotation marks omitted)).

. Stevenson v. Belknap, 6 Iowa 97, 104–05 (1858).

. Dwire v. Stearns, 172 N.W. 69, 71 (N.D. 1919).

. Id.

. Doe v. Doe, 747 A.2d 617, 621 (Md. 2000).

. Kline v. Ansell, 414 A.2d 929, 930 (Md. 1980).

. Id.

. Tinker v. Colwell, 193 U.S. 473, 484 (1904).

. Hunt v. Hunt, 309 N.W.2d 818, 820 (S.D. 1981) (citing W. PROSSER, THE LAW

OF TORTS § 124, at 876–77 (4th ed. 1980)). But see Deming v. Leising, 212 N.Y.S. 213,

214 (App. Div. 1925) (finding a clear distinction between the two torts as adultery is

one of the multiple ways an alienation of affections claim may be brought while, in

contrast, adultery is essential to the tort of criminal conversion).

690 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

gender distinctions in the harms caused and traces of the “wife as

property” justifications clearly remained. For example, many courts

observed that the wife’s right to bring suit was the logical outcome of

the Married Women’s Property Acts.

If the husband’s action for

criminal conversion or alienation of affections at common law

stemmed from his property right in his wife, then the Married

Women’s Property Acts allowed the wife to recover for a similar

property interest in her husband.

In extending rights to wives, some

jurists created more gender-neutral justifications for the torts.

Others

continued to support gendered distinctions. For example, a 1925 New

York court explained that in criminal conversion cases, the “gist of the

wrong to a husband is the shame and dishonor brought upon him, and

the hazard of having to maintain spurious issue.”

The harm to the

wife included “the hazard to her right of having a clean man and

healthy children.”

Allowing women to bring these tort actions did

little to enhance the status of women in the law or society. Rather, it

pitted the wife against the mistress for the failure of the marriage, and

it perpetuated the abhorrent view that one spouse had a compensable

property right in the body of the other spouse.

The amatory torts were largely abolished by the end of the twentieth

century, though some remain viable in a handful of states.

As many

legislatures, courts, and scholars observed, these torts generally

represented antiquated notions about gender roles, morality, and

. See, e.g., Parker v. Newman, 75 So. 479, 484 (Ala. 1917) (noting multiple

“enabling statutes in favor of married women” as a factor in holding that married

women have a right of action to the alienation of affections tort); see also Nicolas, supra

note 15, at 113–14 (emphasizing that the expansion to women “re-theorized the

rationale for the torts”).

. See Nicolas, supra note 15, at 113–14 (explaining that the original rationale for

the tort was to “vindicate the husband’s property interests in his wife’s services”).

. See id. at 114 (adding that the revised tort theory was more generally justified

by preserving harmony in the marital relationship).

. Deming, 212 N.Y.S. at 214.

. Id.

. See, e.g., Strock v. Pressnell, 527 N.E.2d 1235, 1240 (Ohio 1988) (“Since the

1930’s, more than half of the states have abolished or severely limited actions for

alienation of affections.”); see also Fernanda G. Nicola, Intimate Liability: Emotional

Harm, Family Law, and Stereotyped Narratives in Interspousal Torts, 19 WM. & MARY J.

WOMEN & L. 445, 469, 500 (2013) (stating amatory torts were abolished by the 1980s

and including a chart showing locations where tort claims were still allowed as of 2013).

2024] ADULTERY PROVISIONS 691

sexual purity.

The justifications for rejecting the amatory torts varied.

While some advocates of reform pointed to the negative, paternalistic

views of women and their sexuality perpetrated by the torts,

others

pointed to privacy concerns and more general skepticism that the law

should be used as a remedy for hurt feelings.

Of course, some jurists,

legislators, and scholars found justifications for repeal rooted in the

fundamental distrust for women and female sexuality. These

individuals argued that the torts should be repealed because they

provided an opportunity for blackmail, fraud, or extortion.

The

blame for those bad acts was laid either explicitly or impliedly at the

feet of women.

2. Adultery and the intentional infliction of emotional distress

Following the widespread abolition of the amatory torts, some

aggrieved spouses sought relief for emotional harms in factual

scenarios that, previously, might have been compensable as amatory

torts.

Most of these cases involve intentional infliction of emotional

distress (“IIED”) claims.

IIED claims are difficult claims for plaintiffs

. See, e.g., Doe v. Doe, 747 A.2d 617, 621–23 (Md. 2000) (describing legislative

repeal of the amatory torts in Maryland and other states); Fadgen v. Lenkner, 365 A.2d

147, 151 (Pa. 1976) (describing amatory torts as an “anachronism”); see also Susan

Ayres, Paternity Un(Certainty): How the Law Surrounding Paternity Challenges Negatively

Impacts Family Relationships and Women’s Sexuality, 20 J. GENDER RACE & JUST. 237, 262

(2017) (finding that the amatory torts had the effect of punishing women and

rewarding men); Sacks, supra note 50, at 1058 (asserting that amatory torts

compensated fathers for damages resulting from their daughters’ premarital sex).

. See Nicola, supra note 72, at 468–69 (finding that heart balm torts were used to

sexualize women, notably by paying women to seduce married men and using the

result to initiate a divorce or obtain a settlement).

. See Strock, 527 N.E.2d at 1240 (highlighting skepticism about the law’s role in

enforcing personal morals); Koestler v. Pollard, 471 N.W.2d 7, 11 (Wis. 1991)

(rationalizing the human wrong of betrayal as beyond the scope of legal remedy).

. See, e.g., Doe, 747 A.2d at 622 (noting the Maryland legislature’s concern with

the possibility of “blackmail, extortion, and fraud often encountered when such claims

were brought”); Strock, 527 N.E.2d at 1240 (explaining that repeal was due, in part, to

the potential for abuse via blackmail and extortion).

. See Kyle Graham, Why Torts Die, 35 FLA. STATE U. L. REV. 359, 411–18 (2008)

(explaining how news media and legislatures casted women as blackmailers and gold

diggers in an attempt to outlaw the heart balm torts).

. See Quinn v. Walsh, 732 N.E.2d 330, 332 (Mass. App. Ct. 2000) (alleging

intentional infliction of emotional distress resulting from a spouse’s affair and

claiming that the purpose of the affair was to injure the faithful partner).

. To succeed on an IIED claim, a plaintiff must show:

692 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

to bring successfully because plaintiffs are required to meet an

exceptionally high burden of proof.

While IIED suits relating to bad

marital conduct are not per se prohibited,

those relating to ordinary

adultery are generally prohibited.

In dismissing adultery-related IIED

suits, courts often point to the abolition of the amatory torts as

conclusively deciding the matter.

IIED suits by a spouse against the

other spouse’s affair partner are really no different from prohibited

criminal conversion or alienation of affection suits.

In abolishing the

amatory torts, courts and legislatures created a strong public policy

that the emotional harms of adultery were no longer compensable by

tort.

Therefore, litigants cannot use IIED claims to circumvent that

public policy.

Further, many courts hold that affairs do not generally

meet the difficult elements required to bring successful IIED claims.

(1) extreme and outrageous conduct by the defendant; (2) that the defendant

intended to cause severe emotional distress; (3) there must be a causal

connection between the wrongful conduct and the emotional distress; (4)

severe emotional distress must result.

Christians v. Christians, 637 N.W.2d 377, 382 (S.D. 2001) (internal citations omitted);

see also RESTATEMENT (THIRD) OF TORTS: PHYSICAL & EMOTIONAL HARM § 46 (AM. L. INST.

2012) (“An actor who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional harm to another is subject to liability . . . .”).

. See Richardson v. Richardson, 906 N.W.2d 369, 377 (S.D. 2017) (highlighting

that the high burden of proof for IIED claims eliminates frivolous suits stemming from

common arguments).

. Id. at 377–78.

. See, e.g., Strock v. Pressnell, 527 N.E.2d 1235, 1243 (Ohio 1988) (discussing

how courts around the country refused to allow amatory torts to be brought as IIED

claims).

. Id.

. See Cherepski v. Walker, 913 S.W.2d 761, 762–63 (Ark. 1996) (holding that the

former husband’s IIED claim against his adulterous ex-wife was essentially an

alienation of affection action and granting summary judgement against him); Speer v.

Dealy, 495 N.W.2d 911, 914–15 (Neb. 1993) (denying recovery where the husband’s

IIED claim was indistinguishable from a criminal conversion or alienation of affection

claim).

. See Speer, 495 N.W.2d at 914–15 (noting decisions from New York, South

Dakota, Wisconsin, and Ohio, where the state supreme courts refused to allow IIED

claims to replace the abolished torts of criminal conversion and alienation of

affection).

. See id. (holding that IIED is not an appropriate cause of action for a husband

seeking recovery against his wife’s affair partner).

. See Ruprecht v. Ruprecht, 599 A.2d 604, 607–08 (N.J. Super. Ct. Ch. Div. 1991)

(finding that the wife’s alleged adultery did not constitute IIED where the couple had

separated multiple times for a total of several years, and both the husband and the wife

2024] ADULTERY PROVISIONS 693

Adultery, they contend, is not the type of extreme and outrageous

conduct required to support an IIED claim.

A few courts, however, are more willing to consider IIED claims

when the adultery implicates a breach of some professional or ethical

duty owed to the aggrieved spouse by the spouse’s affair partner.

Figueiredo-Torres v. Nickel,

a Maryland court allowed an IIED suit

brought by the husband against the couple’s marriage counselor

relating to the marriage counselor’s sexual relationship with the wife.

Similarly, in Osborne v. Payne,

the Kentucky Supreme Court held that

a husband could pursue IIED claims against a Catholic priest who had

an affair with the wife at the same time as he was counseling the spouses

for their marital difficulties.

These cases hinge upon a distinction

between regular IIED adultery suits, which are essentially prohibited

amatory tort cases under a different name, and IIED adultery suits

involving a professional in a position of power or confidence.

The

latter have the added element of a breach of some professional or

fiduciary duty. The Figueiredo-Torres v. Nickel Court emphasized the

professional duties owed by the therapist to the aggrieved husband.

In Osborne v. Payne, the court pointed to the “confidential relationship

between [the husband] and his priest counselor” as the distinguishing

had filed for divorce); Bailey v. Searles-Bailey, 746 N.E.2d 1159, 1164–66 (Ohio Ct.

App. 2000) (explaining that IIED liability is only appropriate for conduct “so

outrageous in character and so extreme in degree that it goes beyond all possible

bounds of decency and is regarded as atrocious and utterly intolerable in a civilized

society”).

. See Ruprecht, 599 A.2d at 608 (holding that a wife’s alleged affair with her boss

did not “reach the level of outrageousness necessary for liability” in IIED cases).

. Some courts, however, remain skeptical of these claims. See Price v. Fuerst, 24

So. 3d 289, 290–91 (La. Ct. App. 2009) (describing an IIED suit brought by husband

against wife’s divorce attorney for affair); Scamardo v. Dunaway, 694 So. 2d 1041,

1042–43 (La. Ct. App. 1997) (describing an IIED suit brought by husband against

wife’s fertility doctor for affair); Homer v. Long, 599 A.2d 1193, 1196, 1200 (Md. App.

Ct. 1992) (describing an IIED suit brought by husband against wife’s psychiatrist for

affair); Gasper v. Lighthouse Inc., 533 A.2d 1358, 1359–60 (Md. App. Ct. 1987)

(describing an IIED suit brought by husband against the couples’ marriage counselor

for affair with wife).

. 584 A.2d 69 (Md. 1991).

. Id. at 75–77.

. 31 S.W.3d 911 (Ky. 2000).

. Id. at 914.

. See id. (“It is the concept of special relationship that distinguishes this factual

situation from [other cases].”).

. Figueiredo-Torres, 584 A.2d at 73.

694 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

factor.

The narrow professional duty exception to the general

prohibition of IIED claims for adultery probably has little significance

to the enforceability of adultery penalties in marriage contracts. The

theory of liability in professional duty cases stems from the breach of

the professional’s duties to the innocent spouse as a client or patient.

Adultery penalties in marriage contracts, in contrast, usually seek to

punish the spouse for breach of the marital obligation of fidelity, not

the third-party affair partner.

IIED claims brought by one spouse against the other spouse for the

other spouse’s adultery present a slightly different theory of recovery

than claims brought against third parties for their interference in the

marriage relationship. The amatory torts of alienation of affections

and criminal conversion were suits against the third-party affair

partner, not the adulterous spouse.

IIED claims brought between

spouses, in contrast, seek damages from the individual who is the more

direct cause of hurt feelings—the philandering spouse.

100

Interspousal

IIED suits could, perhaps, be conceptually distinguished from the

historical amatory torts and their abhorrent patriarchal roots. Yet, most

courts reject IIED claims brought directly against the adulterous

spouse for some of the same rationales discussed above with respect to

IIED actions against affair partners.

101

In Doe v. Doe,

102

for example,

Maryland’s highest court rejected a husband’s suit against his wife for

concealing the paternity of the children to whom she gave birth to

during the marriage on policy grounds related to the abolition of the

. Osborne, 31 S.W.3d at 914.

. See, e.g., id. (holding that the priest outrageously breached his duty to the

husband when he engaged in an affair with the husband’s spouse).

. See, e.g., MacFarlane v. Rich, 567 A.2d 585, 588, 591 (N.H. 1989) (upholding

provision in a prenuptial agreement that voided the entire marriage contract if the

husband breached his fidelity obligation); infra Section III.B (discussing infidelity

provisions in marriage contracts).

. See supra Section I.B.1 (explaining alienation of affections and criminal

conversion further).

100

. See Whittington v. Whittington, 766 S.W.2d 73, 73–74 (Ky. Ct. App. 1989)

(explaining how Mrs. Whittington sought both actual and punitive damages to

compensate for Mr. Whittington’s adulterous conduct and disposal of mutual funds

during their divorce proceedings).

101

. See Doe v. Doe, 747 A.2d 617, 622–23 (Md. 2000) (finding an IIED claim to be

no different than the abolished tort of criminal conversion); see also Koestler v. Pollard,

471 N.W.2d 7, 10–11 (Wis. 1991) (finding that public policy rationale for outlawing

the tort of criminal conversion also barred relief in an IIED claim against the affair

partner that only alleged elements of criminal conversion to claim IIED).

102

. 747 A.2d 617 (Md. 2000).

2024] ADULTERY PROVISIONS 695

amatory torts.

103

The court noted that while the traditional amatory

torts granted the husband a right of action against the wife’s affair

partner rather than against the wife, the IIED claim was “based on the

same conduct that formerly gave rise to a criminal conversion

action.”

104

Therefore, the same “policy considerations, which led to the

abolition of criminal conversation,” precluded the husband’s IIED

suit.

105

Some other courts contend that adultery is not usually sufficiently

outrageous to support an IIED claim.

106

In Bailey v. Searles-Bailey,

107

for

example, an Ohio court conceded that the husband’s IIED suit against

his wife for concealing her uncertainty about her child’s paternity was

sufficiently distinguishable from a prohibited amatory tort.

108

The

court reasoned that the husband’s claim was “based upon the severe

emotional distress he sustained in finding out the child born during

his marriage was not his biological child, and not on the fact that his

wife was having an adulterous affair.”

109

However, the husband could

not recover because the wife’s concealment of her uncertainty for a

relatively short period of time was not sufficiently outrageous to

support an IIED claim.

110

103

. Id. at 622–23.

104

. Id.

105

. Id. at 623.

106

. See Whittington v. Whittington, 766 S.W.2d 73, 74–75 (Ky. Ct. App. 1989)

(holding that adultery alone can never satisfy the outrageous standard); Shea v.

Cameron, 93 N.E.3d 870, 878 (Mass. App. Ct. 2018) (holding that even if an adulterous

affair where the party knew, or should have known, would cause emotional harm does

not qualify for an IIED claim); Ruprecht v. Ruprecht, 599 A.2d 604, 607–08 (N.J.

Super. Ct. Ch. Div. 1991) (holding that an adulterous affair that lasted for decades

does not meet the outrageous standard); Poston v. Poston, 436 S.E.2d 854, 856 (N.C.

Ct. App. 1993) (holding that violating a religious commitment to fidelity in a marriage

did not amount to an IIED); Bailey v. Searles-Bailey, 746 N.E.2d 1159, 1165–66 (Ohio

Ct. App. 2000) (holding that not immediately informing the plaintiff’s husband that

he might not be the father of the defendant’s child did not amount to IIED). But see

Miller v. Miller, 956 P.2d 887, 902 (Okla. 1998) (holding that hiding paternity of child

for more than 15 years could be sufficiently outrageous).

107

. 746 N.E.2d 1159 (Ohio App. Ct. 2000).

108

. Id. at 1164.

109

. Id.

110

. Id. at 1166.

696 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

3. Adultery in the divorce setting

Adultery is one of the oldest and most widely accepted bases for

divorce in Western legal traditions.

111

Yet, the evolution of American

divorce laws reveals an increasing reluctance to impose financial

penalties based on adulterous conduct. Historically, separation or

divorce could only be granted upon proof of some serious marital fault

on the part of one spouse.

112

By requiring findings of fault and

innocence on the part of the spouses, “divorce law was an outgrowth

of tort law concepts.”

113

Adultery was a marital fault sufficient for

granting a divorce throughout the country.

114

Not only did a finding of

marital fault entitle the innocent spouse to a divorce, it would

negatively impact the divorce’s outcome for the guilty spouse.

115

spouse’s adultery might cause the spouse to forfeit a share of marital

property.

116

A spouse who was found guilty of adultery might be

ordered to pay more alimony or be precluded from receiving it

altogether.

117

Finally, adulterous spouses were often deemed morally

unfit parents and denied custodial rights of their children.

118

As many

courts and scholars observed, the fault-based approach to divorce was

wrought with serious policy problems.

119

It tended to leave women and

111

. See Ayelet Hoffmann Libson, Not My Fault: Morality and Divorce Law in the Liberal

State, 93 TUL. L. REV. 599, 604 (2019) (finding that the most common ground for

divorce across states in the 1800’s was adultery); Raymond C. O’Brien, The Reawakening

of Marriage, 102 W. VA. L. REV. 339, 352 (1999) (noting that adultery was one of the

original fault grounds in early divorce law).

112

. Edward Stein, Adultery, Infidelity, and Consensual Non-Monogamy, 55 WAKE

FOREST L. REV. 147, 157–58 (2020).

113

. Michelle L. Evans, Wrongs Committed During a Marriage: The Child that No Area of

the Law Wants to Adopt, 66 WASH. & LEE L. REV. 465, 466 (2009).

114

. See Stein, supra note 112, at 157–58 (noting that prior to the 1960s, adultery

“was central to divorce law” in the United States).

115

. See id. at 160–61 (detailing the indirect consequences of adultery, such as a

court awarding the adulterous spouse a smaller portion of the marital assets).

116

. Id. at 161–62.

117

. Id. at 160.

118

. See id. at 160 (noting that adultery may undermine the adulterous spouse’s

custody claims); see also Williams v. Williams, 62 So. 2d 729, 729 (Fla. 1953) (en banc)

(custody awarded to the father because of the mother’s adultery and extreme cruelty

towards her husband); Schroeder v. Schroeder, 184 So. 2d 75, 77 (La. Ct. App. 1966)

(noting that the mother’s adultery was a factor that permitted the award of custody to

the father); Carr v. Carr, 480 So. 2d 1120, 1122 (Miss. 1985) (discussing statutory and

jurisprudential rules that denied custody to the adulterous parent).

119

. See Lynn D. Wardle, No Fault Divorce and the Divorce Conundrum, 1991 BYU L.

REV. 79, 92 (1991) (noting that fault-based divorce “[bred] costly, bitter,

counterproductive litigation that impeded reconciliation”).

2024] ADULTERY PROVISIONS 697

children at a severe financial disadvantage following a divorce.

120

Requiring court findings of fault increased bitterness and acrimony

between divorcing spouses.

121

It also encouraged collusion between the

spouses who simply wanted to end their marriages with as little drama

and court interference as possible.

122

States responded to these critiques. Between 1965 and 1985, state

legislatures adopted no-fault divorce regimes that allowed spouses to

divorce without establishing the guilt or innocence of either party.

123

The move to no-fault divorce regimes sought to remedy some of the

harms of the fault-based divorce model.

124

Removing fault from the

divorce equation also gained support from the emerging view that tort

law was the more appropriate vehicle for compensating a spouse for

120

. See, e.g., Marchant v. Marchant, 743 P.2d 199, 203 (Utah Ct. App. 1987)

(describing the use of fault in child custody decisions as being “flavored with bias

against divorced women, an urban environment, and women who pursue [jobs] other

than the traditional role of a homemaker”); see also June Carbone, Income Sharing:

Redefining the Family in Terms of Community, 21 HOUS. L. REV. 359, 402 (1994) (“[A]s the

courts used the concept of fault to permit [divorce] . . . [divorce was made available]

for a price that most men, but fewer women, could afford.”); Naomi Cahn, Faithless

Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. ILL. L.

REV. 651, 663–64 (2002) (noting that in addition to financial hardship, women who

“breached their marital obligations” would be at risk of losing custody of their children

and subjecting themselves and their children to social shame). Some scholars,

however, contest this point. See, e.g., Jana B. Singer, The Privatization of Family Law, 1992

WIS. L. REV. 1443, 1556 (1992) (arguing that no-fault, rather than fault-based, divorce

regimes have had negative economic consequences for women and their children);

Allen M. Parkman, Reforming Divorce Reform, 41 SANTA CLARA L. REV. 379, 379–80 (2001)

(arguing that women and children are “worse off” in a no-fault divorce regime because

the ability of one spouse to obtain a divorce unilaterally results in inadequate

compensation to the other spouse and their children).

121

. See Solangel Maldonado, Cultivating Forgiveness: Reducing Hostility and Conflict

After Divorce, 43 WAKE FOREST L. REV. 441, 459–60 (2008) (detailing how the nature of

fault-based divorce cultivated negative relations between divorcing spouses).

122

. Libson, supra note 111, at 604.

123

. See Tiffany N. Lee, Divorce and Dissolution, 2 GEO. J. GENDER & L. 347, 353–55

(2001) (describing the rise of no-fault divorce regimes); Shaakirrah R. Sanders, The

Cyclical Nature of Divorce in the Western Legal Tradition, 50 LOY. L. REV. 407, 430 (2004)

(clarifying that the often used phrase “irreconcilable differences” means a no-fault

divorce).

124

. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L.

REV. 79, 92 (1991) (noting that no-fault divorce grounds resulted in less hostile and

more reconciliatory litigation compared to fault-based regimes).

698 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

harms caused by the other spouse’s fault.

125

In other words, no-fault

divorce reforms sought to separate divorce and tort laws. As discussed

above, however, tort law underwent a concurrent evolution that

limited the availability of financial recovery for the emotional harms

caused by adultery.

126

Taken together, these reforms seriously limited

a spouse’s ability to seek economic recovery for emotional harms.

Notwithstanding the nationwide adoption of no-fault divorce laws,

marital fault, including adultery, remains a relevant divorce

consideration in many states.

127

Broadly, state divorce laws can be

placed into one of two categories: pure no-fault states and fault-

relevant states.

128

A sizable minority of states adopted a “pure no-fault”

approach.

129

In these states, marital fault, such as adultery, cannot be

considered in divorces.

130

Divorce is only permitted on a no-fault basis,

and fault cannot be considered in dividing marital assets or making

125

. See Am. L. Inst., Principles of the Law of Family Dissolution: Analysis and

Recommendations, 8 DUKE J. GENDER L. & POL’Y 1, 44 (2001) [hereinafter Family

Dissolution] (finding that a tort-based model for considering marital misconduct at

dissolution addressed the issues not recognized by a no-fault system).

126

. See infra Section I.B.2 (explaining the general rule that IIED suits for adultery

against either the adulterous spouse or the third party are generally prohibited outside

of the breach of some professional or ethical duty owed to the aggrieved spouse).

127

. See Lee, supra note 123, at 357–58 (breaking down which states still permit

courts to, on a discretionary basis, consider fault in property and alimony

determinations). See generally Evans, supra note 113, at 474 (detailing the emergence

of no-fault divorce as either the sole basis for dissolution or an alternative to traditional

fault-based systems); Pamela Laufer-Ukeles, Reconstructing Fault: The Case for Spousal

Torts, 79 U. CIN. L. REV. 207, 209 (2010) (noting that while no-fault divorce was widely

accepted for its advantages for parents and children, the fault remains “persistently

relevant” whether as a bargaining tool or a way to gain an advantage over financial or

custodial matters).

128

. Other authors have divided states along similar, if not identical lines; some

have more categories, some have fewer. See, e.g., Family Dissolution, supra note 125, at

40–42 (listing five possible state divorce law categories: (1) pure no-fault; (2) pure no-

fault property, almost pure no-fault alimony; (3) almost pure no-fault; (4) no-fault

property, fault in alimony; (5) and full-fault); Ira Mark Ellman, The Place of Fault in a

Modern Divorce Law, 28 ARIZ. ST. L.J. 773, 781–82 (1996) (proposing a five-category

division but noting that other surveys would have fewer categories).

129

. See Family Dissolution, supra note 125, at 40 (identifying 20 states as pure no-

fault); see also Charts 2021: Family Law in the Fifty States, D.C., and Puerto Rico, 55 FAM.

L.Q. 513, 514–26 (2022) [hereinafter Charts 2021] (listing the pure no-fault states).

130

. Family Dissolution, supra note 125, at 40. However, California now allows fault

in the form of abuse to be considered in divorce proceedings. Stasia Rudiman, Domestic

Violence as an Alimony Contingency: Recent Developments in California Law, 22 J. CONTEMP.

LEGAL ISSUES 498, 498 (2015); see also CAL. FAM. CODE § 4320 (West 2023).

2024] ADULTERY PROVISIONS 699

spousal support awards.

131

In adopting the pure no-fault approach,

state legislatures sought to completely remove discussions of marital

fault from the divorce process. As is discussed in more depth below,

these states also tend to prohibit contractual workarounds to their no-

fault public policies.

132

The remaining states are fault-relevant.

133

In these states, marital

fault can enter the divorce proceedings in a variety of manners.

134

Some of the fault-relevant states adhere to a pure no-fault basis for

granting a divorce, but they allow fault to be considered in making

spousal support awards or other financial awards.

135

For example,

Florida, only permits divorce when the “marriage is irretrievably

broken,” or due to the mental incapacity of one of the parties.

136

These

are essentially pure no-fault grounds for divorce.

137

Yet, by statute,

Florida courts may consider the adultery of either spouse in making a

spousal support award.

138

Similarly, Missouri only permits divorce on a

pure no-fault basis but allows fault considerations in spousal support.

139

Moreover, Missouri courts may consider “[t]he conduct of the parties

during the marriage”

140

in making spousal support awards, a more

expansive fault basis than what is seen in Florida.

141

131

. Family Dissolution, supra note 125, at 40.

132

. See infra Part III (explaining the reasoning behind many courts’ reluctance to

enforce adultery provisions and penalties in postnuptial agreements).

133

. See Family Dissolution, supra note 125, at 41–42 (discussing states with fault-

relevant provisions).

134

. See id. (noting, for example, that some states allow trial courts discretion to

consider fault when awarding alimony, but not when allocating marital property).

135

. See generally Charts 2021, supra note 129, at 514–26 (identifying no-fault states

that statutorily permit courts to consider fault when awarding alimony).

136

. FLA. STAT. § 61.052 (2023).

137

. See, e.g., 25A FLA. JUR. 2D Family Law §§ 708–12 (2023) (detailing the

requirements for mental incapacity as a ground for dissolution of marriage). Given

that mental incapacity is not necessarily a “fault” and that the provisions cited mention

no other “fault-based” ground for divorce, Florida is essentially a no-fault state when it

comes to grounds for divorce.

138

. FLA. STAT. § 61.08 (2023).

139

. See MO. ANN. STAT. §§ 452.305, 452.335 (2023) (providing that the court will

enter a judgement for dissolution of a marriage if the court finds that the marriage

has been irretrievably broken, but that in a proceeding for maintenance following

dissolution, the court may consider the conduct of the parties during the marriage).

140

. Id. § 452.335.

141

. See Sweet v. Sweet, 154 S.W.3d 499, 505 (Mo. Ct. App. 2005) (considering a

husband’s transfer of assets to his girlfriend); In re Marriage of Medlock, 749 S.W.2d

700 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

Other fault-relevant states allow divorce to be obtained on both fault

and no-fault grounds.

142

Fault in these states is usually relevant both for

obtaining a divorce and for making spousal support or other financial

awards.

143

For example, Connecticut, allows divorce on no-fault

irretrievable breakdown grounds as well as a variety of fault-based

grounds, including adultery.

144

In awarding spousal support or dividing

marital property, Connecticut courts are permitted to consider the

cause of the divorce,

145

and, in practice, Connecticut courts consider a

wide array of bad behavior, including adultery, in deciding the

economic consequences of divorce.

146

Most states that continue to consider fault insist that fault should not

be used as a reward for innocence or a punishment for guilt.

147

However, if a court considers fault in awarding spousal support or

dividing marital property, what is the purpose of considering fault, if

437, 444–45 (Mo. Ct. App. 1988) (considering a husband’s infidelity, abandonment,

drinking, and threats of violence in dividing the marital estate). Compare MO. ANN.

STAT. § 452.335 (2023) (allowing courts to consider the conduct of the parties during

the marriage generally), with FLA. STAT. § 61.08 (2023) (limiting the courts

consideration of fault to adultery).

142

. See generally Charts 2021, supra note 129, at 514 (noting that while all states allow

for some form of no-fault divorce, others permit fault grounds in addition to no-fault

grounds).

143

. See id. at 514–26 (listing states that have fault-based divorce and spousal support

provisions).

144

. CONN. GEN. STAT. ANN. § 46b-40 (West 2023).

145

. CONN. GEN. STAT. ANN. §§ 46b-81, 82 (West 2023).

146

. See, e.g., Senk v. Senk, 973 A.2d 131, 136 (Conn. App. Ct. 2009) (considering

the wife’s abusive and controlling behavior, the wife’s control of the husband’s

finances, and the wife causing the husband “to become confused and feeble by plying

him with alcohol and prescription drugs not prescribed to him” in awarding marital

home to husband); Rivnak v. Rivnak, 913 A.2d 1096, 1100–01 (Conn. App. Ct. 2007)

(considering the husband’s affairs, domestic violence, and marijuana use in awarding

spousal support and dividing marital property); Burns v. Burns, 677 A.2d 971, 973–75

(Conn. App. Ct. 1996) (considering the husband’s affairs in making a property

division).

147

. See, e.g., Witcher v. Witcher, 639 A.2d 1187, 1191 (Pa. Super. Ct. 1994) (“[T]he

general philosophy of the Divorce Code has been to accomplish the dissolution of a

marriage in a manner that recognizes the family’s prior existence as both an economic

and social unit, and that emphasizes future welfare of all family members, instead of

in a manner that identifies and punishes the guilty party.”); Hall v. Hall, 40 P.3d 1228,

1230 (Wyo. 2002) (“Although the trial court cannot divide the property in such a way

that it would punish one of the parties, it may consider fault of the respective

parties . . . .”).

2024] ADULTERY PROVISIONS 701

not to impose some punishment? A Utah court called the notion a

“distinction without a difference,”

148

and explained:

In other words, if a trial court uses its broad statutory discretion to

consider fault in fashioning an alimony award and then, taking that

fault into consideration, adjusts the alimony award upward or

downward, it simply cannot be said that fault was not used to punish

or reward either spouse by altering the award as a consequence of

fault.

149

Nevertheless, many courts, including the Utah Supreme Court,

perceive some distinction between simply considering fault and

imposing a punishment.

150

Judicial explanations of the distinction

remain frustratingly obtuse. Some Tennessee courts, for example, hold

that although alimony cannot be used to punish a spouse, the amount

of alimony may be reduced due to the recipient spouse’s fault.

151

How

is a reduction in alimony—due to fault—anything other than a

punishment?

A few jurisdictions have crafted a more meaningful distinction by

considering or requiring evidence that the fault resulted in actual

economic harm. For example, the Florida Supreme Court limited the

significance of the statutorily authorized consideration of adultery to

cases where the adultery dissipated marital assets.

152

On the one hand,

Florida courts can consider adultery in awarding alimony if that fault

148

. Mark v. Mark, 2009 UT App 374, ¶ 17, 223 P.3d 476, 482 (quoting Cent. Fla.

Invs., Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 17, 40 P.3d 599, 607).

149

. Id.

150

. See Gardner v. Gardner, 2019 UT 61, 452 P.3d 1134, 1149 n.56, 1150

(discussing the difference between considering fault as a punitive measure compared

to considering fault to rectify inequity); Hall, 40 P.3d at 1230 (finding that the trial

court did not abuse its discretion in dividing marital property when the trial court

considered, in part, the husband’s conduct during the marriage in awarding certain

items to the wife).

151

. Tait v. Tait, 207 S.W.3d 270, 278 (Tenn. Ct. App. 2006); Duncan v. Duncan,

686 S.W.2d 568, 571 (Tenn. Ct. App. 1984).

152

. See Noah v. Noah, 491 So. 2d 1124, 1127 (Fla. 1986) (finding that where

adulterous conduct did not result in greater financial need by one spouse or where

the adulterous conduct did not contribute to the depletion of financial resources,

consideration of fault was not appropriate). For a less explicit consideration of

economic harms, see Fronsaglia v. Fronsaglia, 246 A.3d 1083, 1096 (Conn. App. Ct.

2021) (considering the defendant’s poor business decisions and the payments the

defendant made to the third party involved in the extramarital affair when awarding

alimony).

702 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

dissipated the couple’s financial resources.

153

On the other hand, the

courts should not consider a spouse’s adultery in increasing or

decreasing an alimony award.

154

Other jurisdictions reject this view and

insist that they can consider fault that resulted in purely emotional,

rather than economic, harm without using it as a punishment.

155

A few states are more candid about the punitive nature of

considering fault in crafting economic awards at divorce. In Louisiana,

for example, only a spouse free from fault may bring a claim for final

periodic spousal support.

156

Similarly, a spouse in Georgia who has

committed adultery or desertion is precluded from receiving

alimony.

157

The Louisiana and Georgia approaches are difficult to

justify in the modern era.

158

They have the effect of punishing the

economically disadvantaged spouse for adultery while imposing no

comparable penalty on the wealthier spouse.

159

In other words, the

153

. See Noah, 491 So. 2d at 1126–27 (finding that where a spouse’s adulterous

conduct resulted in financial inequity or the depletion of financial resources, courts

may consider the adulterous conduct in awarding alimony); see also Lostaglio v.

Lostaglio, 199 So. 3d 560, 563 (Fla. Dist. Ct. App. 2016) (finding that “in the absence

of any evidence that Wife depleted marital assets to further her adulterous behavior,”

the trial court properly weighed the evidence when awarding durational alimony to

the wife).

154

. See Noah, 491 So. 2d at 1126 (approving the district court’s limit when a non-

alimony seeking spouse’s adultery is solely offered for an increased alimony award);

Lostaglio, 199 So. 3d at 563–64 (noting that a party’s adulterous conduct is not by itself

a reason to award a greater share of marital assets).

155

. See Coleman v. Coleman, 318 S.W.3d 715, 721 (Mo. Ct. App. 2010)

(recognizing the emotional impact that marital misconduct may cause as a factor in

awarding alimony); McIntosh v. McIntosh, 41 S.W.3d 60, 68–69 (Mo. Ct. App. 2001)

(considering the emotional impact from a party’s marital misconduct allows courts to

realistically address the negative effects on the other party where the misconduct did

not cause economic harm).

156

. LA. CIV. CODE ANN. arts. 111–12 (2023); accord Gober v. Gober, 2020-0820 (La.

App. 1 Cir. 3/11/21), 322 So. 3d 787, 789–90 (rejecting a claim that a spouse

“refus[ing] normal marital relations,” constituted fault sufficient to bar an award of

final periodic spousal support under Louisiana law).

157

. GA. CODE ANN. § 19-6-1 (West 2023).

158

. See Kirsten Gallacher, Fault-Based Alimony in No-Fault Divorce, 22 J. CONTEMP.

LEGAL ISSUES 79, 85 (2014–15) (noting that modern day fault-based alimony provisions

can perpetuate gender stereotypes and may impose disproportionate consequences

on financially dependent spouses).

159

. The Louisiana and Georgia provisions make the determination of alimony

dependent only on the receiving spouse’s fault or lack thereof. See GA. CODE ANN. § 19-

6-1 (West 2023) (excluding the availability of alimony payments to those whose

2024] ADULTERY PROVISIONS 703

wealthier spouse can cheat without fear of a financial penalty, while

the poorer spouse cannot. North Carolina takes a more balanced

approach in meting out punishment. Not only is a spouse who engages

in “illicit sexual behavior” during the marriage precluded from

receiving alimony, but it is also a statutory basis for requiring the guilty

spouse to pay alimony.

160

These states are clearly the outliers. For the

most part, American law takes the position that courts should not

punish adulterers for the emotional harm they caused to their spouses.

C. What Specific Acts Constitute Adultery?

If a matrimonial agreement includes some penalty stemming from a

spouse’s adultery, what specific acts will be sufficient to invoke that

penalty? Though some agreements attempt to craft a specific

definition of adultery,

161

others simply refer to adultery without

defining the term.

162

In the latter case, a court may be tasked with

deciding whether the complained of conduct constitutes adultery. The

legal meaning of adultery has been considered extensively by

“adultery or desertion” caused the parties to separate); LA. CIV. CODE ANN. arts. 111–

12 (2023) (limiting the availability of periodic support payments to those spouses who

had not been at fault prior to the petition for divorce). The provisions, in effect only,

punish financially dependent spouses who have committed adultery, as they are the

party who would benefit from a determination of alimony or support payment;

meanwhile, they provide no similar consequences for the more financially

independent spouse who commits adultery.

160

. N.C. GEN. STAT. ANN. § 50-16.3A (West 2023).

161

. See, e.g., Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494, 495 (Ct. App. 2002)

(addressing an agreement that defined adultery as “to volitionally engage in any act of

kissing on the mouth or touching in any sexual manner of any person outside of said

marital relationship”); Lloyd v. Niceta, 284 A.3d 808, 816–17 (Md. Ct. Spec. App. 2022)

(highlighting an agreement that punished a husband’s immoral conduct that included

“inappropriate emails; sexting; sending pornographic pictures of himself to the other

person; receiving pornographic pictures of the other person; romantically kissing,

hugging, fondling, or embracing another person; keeping secret email, cell phone or

credit card accounts; or engaging in sexual acts with another person even if it does not

lead to intercourse”).

162

. See, e.g., Thacker v. Thacker, 298 So. 3d 502, 503 (Ala. Civ. App. 2020)

(addressing an agreement that simply referred to adultery); Adams v. Adams, 603

S.E.2d 273, 274 (Ga. 2004) (describing an agreement that referred to “unforgiven

adultery”).

704 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

American courts, and it has evolved over time.

163

The meaning,

however, may be at odds with individualized views of marital fidelity.

Historical legal views of which sexual acts constitute adultery flow

from patriarchal and heteronormative views of human sexuality.

164

Given the gendered history of the punishments meted out on

unfaithful spouses, this is hardly surprising. Traditionally, adultery was

limited to sexual acts that could result in pregnancy.

165

Initially, of

course, it was the pregnancy of a wife that mattered.

166

If adultery was

an act that required a married woman, and if the harm of adultery was

the potential for spurious offspring,

167

then the act of adultery required

a wife to engage in vaginal intercourse with a man other than her

husband. This view of adultery was eventually expanded to include acts

that risked the husband impregnating a woman other than his wife.

168

These narrow definitions of adultery were clearly based on the “woman

as property” view of adultery.

169

They also excluded a wide array of

sexual acts that are routine expressions of human sexuality.

170

Some jurisdictions clung to these antiquated views of adultery for a

surprisingly long time.

171

A 1951 New York court refused to grant a wife

a divorce based on adultery even though her husband pleaded guilty

163

. Compare State v. Lash, 16 N.J.L. 380, 384 (1838) (defining adultery not to

include acts committed by a married man with a single woman), with Lloyd v. Niceta,

284 A.3d 808, 816–18 (Md. App. 2022) (finding that a married man committed

adultery with no mention of the marital status of the third party).

164

. See Nicolas, supra note 15, at 105–06 (finding that the “gendered approach to

defining adultery found its way into the English common law”).

165

. See generally In re Blanchflower, 834 A.2d 1010, 1011–12 (N.H. 2003) (“Adultery

is committed whenever there is an intercourse from which spurious issue may

arise . . . .” (quoting State v. Wallace, 9 N.H. 515, 517 (1838))).

166

. State v. Lash, 16 N.J.L. at 388–89.

167

. Id.

168

. See Sandi S. Varnado, Avatars, Scarlet “A”s, and Adultery in the Technological Age,

55 ARIZ. L. REV. 371, 384 (2013) (explaining that the definition of adultery expanded

to include infidelity by a married man).

169

. See supra text accompanying notes 7, 17, 20 (acknowledging that throughout

history, religious and common laws have consistently regarded women as property,

owned by their fathers and husbands).

170

. See generally, KINSEY INST. IND. U., ANNUAL REPORT 2022 4 (2022), https://kinsey

institute.org/pdf/Kinsey_Annual%20Report_2022_FINAL_2page.pdf [https://perm

a.cc/JJH9-LVHY] (continuing to research and document empirical data, which

questions the dominant discourse about American sexual habits, and instead

emphasizes wide variation in sexual practices, frequencies, and partners).

171

. See, e.g., Glaze v. Glaze, 46 Va. Cir. 333, 333–34 (Ct. 1998) (refusing a divorce

because a woman could not, as a matter of law, commit adultery with another woman).

2024] ADULTERY PROVISIONS 705

in a criminal case to “the crime of sodomy upon a male person.”

172

Similarly, a 1967 New Jersey court held that a woman’s sexual activity

with another man could not constitute adultery because there was

ample evidence that previous cancer treatments had left “her vagina []

completely occluded and obliterated” and her “doctor testified that

not the slightest degree of penetration was possible.”

173

A 1998 Virginia

court refused a husband’s suit for divorce from his wife based on her

sexual relationship with another woman because adultery required a

penis to penetrate her vagina.

174

Even in 2003, the New Hampshire

Supreme Court refused to grant a husband a divorce on the basis of

his wife’s adultery because her sexual relationship with another woman

was not legally adultery.

175

Of course, non-procreative sexual acts were not condoned by the

courts and have their own long and colorful religious, social, and legal

history, largely tracking that of adultery.

176

Courts often treated these

other types of “deviant” sexual acts as a marital fault other than

adultery. Many courts considered non-procreative sexual acts outside

of the marriage to constitute extreme cruelty, which was a basis for

divorce in many states.

177

In states where the question of adultery is still relevant for divorce,

courts usually adopt a more expansive view of which sexual acts

constitute adultery.

178

Some courts offer little in the way of analysis for

this change in attitude and conclude that sexual activity by a married

person with a third party constitutes adultery, regardless of the specific

sexual acts involved.

179

Others, however, offer more insights. Rather

172

. Cohen v. Cohen, 200 Misc. 19, 19–20 (N.Y. Sup. Ct. 1951).

173

. W. v. W., 226 A.2d 860, 861–62 (N.J. Super. Ct. Ch. Div. 1967).

174

. Glaze, 46 Va. Cir. at 333–34.

175

. In re Blanchflower, 834 A.2d 1010, 1011–12 (N.H. 2003).

176

. See, e.g., Nicolas, supra note 15, at 98, 100–02 (finding the criminalization of

sodomy followed that of adultery).

177

. See, e.g., Currie v. Currie, 162 So. 152, 153–54 (Fla. 1935) (highlighting how a

husband’s refusal to have a sexual relationship with his wife, along with his sexual

relationships with young men and boys, constituted extreme cruelty); A. v. A., 209 A.2d

668, 668 (N.J. Super. Ct. Ch. Div. 1965) (noting that a homosexual relationship

constituted extreme cruelty).

178

. See, e.g., Menge v. Menge, 491 So. 2d 700, 701–02 (La. Ct. App. 1986)

(including oral sex as adultery); RGM v. DEM, 410 S.E.2d 564, 566–67 (S.C. 1991)

(including a sexual relationship between two women as adultery).

179

. See, e.g., Patin v. Patin, 371 So. 2d 682, 683 (Fla. Dist. Ct. App. 1979) (noting

that the court found no “substantial distinction” between a homosexual affair and a

706 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

than focusing on the potential for spurious offspring, these courts tend

to focus on the emotional harm one spouse’s sexual relationship with

a third party causes the other spouse.

180

As one New Jersey court

explained: “An extramarital relationship . . . is just as devastating to the

spouse irrespective of the specific sexual act performed by the

promiscuous spouse or the sex of the new paramour.”

181

These

decisions sometimes continue to reveal frustratingly patriarchal and

heteronormative views. For example, that same New Jersey court went

on to opine that the “homosexual violation of marital vows could be

well construed as the ultimate in rejection.”

182

Even if the contemporary view of adultery is purportedly rooted in

the damage to the psyche of the jilted spouse, traces of the abhorrent

spouse’s body as property of the other spouse theory remain. Legal

adultery generally requires some in-person, person-to-person sexual

act. While many spouses and some scholars may feel that purely online

conduct like viewing pornography or cybersex is adulterous, courts do

not seem to agree.

183

Similarly, so-called emotional affairs may be just

as devastating to a relationship and a jilted spouse’s psyche as physical

affairs, but they apparently do not constitute adultery in the legal

sense.

184

Moreover, not all sexual acts are sufficiently intimate to constitute

legal adultery. Numerous court decisions imply that physical acts like

amorous kissing and hugging are insufficient to constitute adultery.

185

Instead, some greater physical, sexual act is needed to prove

heterosexual affair “because both involve extra-marital sex and therefore marital

misconduct”); RGM, 410 S.E.2d at 567 (adopting the rationale of Patin without further

elaboration).

180

. See S.B. v. S.J.B., 609 A.2d 124, 126–27 (N.J. Super. Ct. Ch. Div. 1992) (finding

that adultery should be “viewed from the standpoint of the parties” rather than on

“purely technical grounds”).

181

. Id. at 126.

182

. Id.

183

. See Brenda Cossman, The New Politics of Adultery, 15 COLUM. J. GENDER & L. 274,

280 (2006) (discussing the views of two scholars who argue that affairs on the internet

constitute adultery). See generally, Varnado, supra note 168, at 409 (finding that

changing attitudes towards online infidelity may cause courts to “have to decide

whether online infidelity reaches the level of adultery in the eyes of the law”).

184

. See Beckwith v. Beckwith, No. 12-1165, 2013 WL 4726691, at *2 (W. Va. Sept. 3,

2013) (finding that the petitioner failed to prove adultery based solely on an alleged

emotional affair).

185

. See, e.g., Rea v. Rea, 822 S.E.2d 426, 429–30 (N.C. Ct. App. 2018) (finding

evidence of a husband kissing another woman permitted an inference of adultery but

did not itself constitute adultery).

2024] ADULTERY PROVISIONS 707

adultery.

186

Quite a few adultery cases include eyewitness testimony,

often from private investigators, of kissing, hugging, and other similar

conduct.

187

The inference made by most courts is that hugging, kissing,

or other similar interactions lead to some greater sexual act that is

sufficient to constitute adultery.

188

The logical implication, then, is that

these lesser sexual acts alone do not constitute adultery. In Arnoult v.

Arnoult,

189

for example, a private investigator observed the wife

hugging and kissing a man who was not her spouse before going inside

the man’s home at 3:30 a.m. and remaining there for several hours.

190

The wife conceded that these observations were correct, but she

denied the allegations of adultery.

191

Presumably, hugging and kissing

did not amount to adultery. Rather, adultery was some unobserved

sexual act that occurred within the home. The court observed that the

wife and the man “were clearly engaged in sexual foreplay prior to

returning to [the man’s] residence at 3:30 [A.M.]” and suggested that

such evidence supported a finding that adultery occurred within the

home.

192

186

. See id. (concluding that kissing, along with other circumstantial evidence,

satisfied the “opportunity and inclination doctrine” to surpass mere conjecture of

sexual intercourse (quoting Coachman v. Gould, 470 S.E.2d 560, 563 (N.C. Ct. App.

1996))).

187

. See, e.g., id. (finding eyewitness testimony from a private investigator provided

sufficient evidence of a husband kissing another woman); Brown v. Brown, 665 S.E.2d

174, 179–80 (S.C. Ct. App. 2008) (per curiam) (holding that a husband met his burden

in proving his wife committed adultery with a third party through the wife’s own

admissions that she would meet the third party for lunches, kissing, and fondling);

Watts v. Watts, 581 S.E.2d 224, 227–28, 230 (Va. Ct. App. 2003) (holding the wife

proved her husband committed adultery through clear and convincing evidence

substantially provided by a private investigator).

188

. See Rea, 822 S.E.2d at 430 (holding evidence of a husband kissing and meeting

with another woman at a hotel was sufficient to support a finding of adultery); see also

Brown, 665 S.E.2d at 179 (holding that the wife’s secretive meetings in parking lots with

a third party provided sufficient evidence to establish adultery).

189

. 690 So. 2d 101 (La. Ct. App. 1997), cert. denied, 692 So. 2d 1089 (La. 1997)

(mem.).

190

. Id. at 101–02.

191

. Id. at 102.

192

. Id. at 102–03.

708 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

II. ARE ADULTERY PENALTIES ENFORCEABLE?

Spouses are usually free to enter into marriage contracts with respect

to any matter not contrary to public policy.

193

Two very different lines

of thinking have emerged among the courts to consider the

enforceability of adultery provisions. One line of thinking holds that

adultery provisions are unenforceable as a matter of public policy. The

other line of thinking allows adultery provisions under the general

freedom of contract theory. This Part considers the two different lines

of analysis and some interesting ancillary issues relating to adultery

penalties.

A. Adultery Provisions Are Unenforceable in Some Jurisdictions

In some states, adultery provisions are per se unenforceable.

194

Courts point to several justifications for this approach. Some courts

point to no-fault divorce laws as a policy basis for refusing to enforce

adultery penalties. Much of the reasoning in these cases can be traced

to Diosdado v. Diosdado,

195

a 2002 California Court of Appeal decision.

196

The case involved a postnuptial agreement, signed after the husband

had an affair, which contained a $50,000 adultery penalty.

197

The court

pointed to California’s no-fault divorce legislation as a public policy

justification for refusing to enforce the penalty.

198

In adopting an

exclusively no-fault divorce regime, the California legislature prevented

courts from considering fault, such as adultery, when “dissolving the

marriage, dividing property, or ordering support.”

199

In seeking to

penalize the husband for his adultery, the California Court of Appeal

said the agreement did the exact opposite.

200

In the court’s view, the

adultery penalty was “in direct contravention of the public policy

193

. See J. Thomas Oldham & David S. Caudill, A Reconnaissance of Public Policy

Restrictions upon Enforcement of Contracts Between Cohabitants, 18 FAM. L.Q. 93, 94–95

(1984) (listing regularly imposed premarital, postmarital, and separation

enforceability limitations such as “fair” written agreements and full disclosure of all

relevant facts).

194

. See, e.g., Crofford v. Adachi, 506 P.3d 182, 190 (Haw. 2022) (finding the

couple’s marital agreement, which included an adultery provision, per se

unenforceable).

195

. 118 Cal. Rptr. 2d 494 (Ct. App. 2002).

196

. Id. at 496–97.

197

. Id. at 494–95.

198

. Id. at 496.

199

. Id. at 496–97.

200

. Id.

2024] ADULTERY PROVISIONS 709

underlying no-fault divorce.”

201

Courts in a handful of other no-fault

states have adopted the reasoning in Diosdado,

202

and it should be

convincing in any pure no-fault divorce state.

Courts have also pointed to more general privacy concerns when

refusing to enforce adultery provisions. For example, in In re Marriage

of Cooper,

203

the Iowa Supreme Court expressed a general reluctance to

regulate private conduct.

204

In refusing to enforce an adultery penalty

in a postnuptial reconciliation agreement, the court pointed to various

policy considerations. The court expressed disfavor for any contract

that included “the sexual conduct of the parties within the marital

relationship” as a condition precedent to the contract.

205

The court

pointed to “[a] unifying theme of [its] historic case law,” namely, that

it would not enforce “attempt[s] to regulate the conduct of [the]

spouses during the marital relationship . . . .”

206

The court further

explained that it did “not wish to create a bargaining environment

where sexual fidelity or harmonious relationships [we]re key

variables.”

207

This reasoning is likewise persuasive in any pure no-fault

divorce state and might also have traction in some fault-relevant states.

B. Adultery Penalties Are Generally Enforceable in Some Jurisdictions

In some states, under general freedom of contract principles, courts

generally consider adultery penalties to be enforceable.

208

The nature

of the penalty may vary, but this does not tend to affect

201

. Id.

202

. See, e.g., Crofford v. Adachi, 506 P.3d 182, 190 (Haw. 2022) (finding the

couple’s marital agreement requiring the court to evaluate the parties’ fault

unenforceable as contrary to public policy); In re Marriage of Cooper, 769 N.W.2d 582,

587 (Iowa 2009) (holding the couple’s reconciliation agreement void, as it inserted

fault back into divorce proceedings); Parker v. Green, No. 73176, 2018 WL 3211974,

at *2 (Nev. June 25, 2018) (holding that as a no-fault divorce state, Nevada does not

allow damage recovery for infidelity).

203

. 769 N.W.2d 582 (Iowa 2009).

204

. Id. at 587.

205

. Id. at 586.

206

. Id.

207

. Id.

208

. See, e.g., Weymouth v. Weymouth, 87 So. 3d 30, 37 (Fla. Dist. Ct. App. 2012)

(holding a clause in a prenuptial agreement that precluded alimony unless the basis

for the divorce was adultery or abuse to be enforceable).

710 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

enforceability.

209

Some agreements predicate the enforceability of the

entire agreement on spousal fidelity. In MacFarlane v. Rich,

210

the New

Hampshire Supreme Court approved a provision that voided the

married couple’s entire prenuptial agreement if the husband left the

wife for another woman.

211

Additionally, some agreements tie alimony

awards to fidelity or adultery.

212

For example, in Weymouth v.

Weymouth,

213

a Florida court approved a provision in a prenuptial

agreement that waived spousal support claims “unless the basis for the

dissolution [wa]s adultery, physical abuse, [or] mental or emotional

abuse.”

214

In upholding the spousal support award in favor of the wife,

the court noted that the trial court had specifically found that the

husband’s adulterous relationship was the primary cause for the

marriage’s dissolution.

215

Some agreements fix adultery penalties in specific dollar amounts.

216

These penalties are sometimes obvious. For example, in Lloyd v.

209

. For some additional examples of adultery penalties, see Agulnick v. Agulnick,

136 N.Y.S.3d 462, 466 (App. Div. 2020) holding parties’ postnuptial agreement

including provisions for greater financial liability for the husband if he engaged in

certain acts of sexual infidelity enforceable, and Vanneck v. Vanneck, No. FA

970343100S, 1998 WL 638473, at *2–4 (Conn. Super. Ct. Sept. 8, 1998) refusing to

enforce the agreement for various fairness reasons.

210

. 567 A.2d 585 (N.H. 1989).

211

. Id. at 588, 590.

212

. See, e.g., Weymouth, 87 So. 3d at 32 (explaining that the parties’ prenuptial

agreement waived any claim to alimony unless the basis for dissolution was adultery or

abuse); Vogt v. Vogt, 831 So. 2d 428, 429 (La. Ct. App. 2002) (highlighting a prenuptial

agreement that allowed the wife to be awarded alimony so long as she did not commit

adultery); In re Marriage of Rice, No. 91620, 2005 WL 1661323, at *4 (Kan. Ct. App.

Nov. 1, 2005) (per curiam) (describing how in a couple’s prenuptial agreement, the

wife waived rights to alimony payments if a court found that she committed adultery);

Brown v. Brown, No. W2013-00263-COA-R3-CV, 2013 WL 12180656, at *1 (Tenn. Ct.

App. Sept. 12, 2013) (highlighting a couple’s prenuptial agreement that included a

clause stating that the husband would not owe any payments to the wife if she had a

sexual affair or committed adultery); Hall v. Hall, No. 2021-04-4, 2005 WL 2493382, at

*1 (Va. Ct. App. Oct. 11, 2005) (describing a couple’s postnuptial agreement that

provided that the wife would relinquish her right to spousal support upon proof that

she committed adultery).

213

. 87 So. 3d 30 (Fla. Dist. Ct. App. 2012).

214

. Id. at 32, 34, 37.

215

. Id. at 37.

216

. See, e.g., Brennan v. Brennan, 955 S.W.2d 779, 781 (Mo. Ct. App. 1997)

(describing an agreement where the husband would pay the wife $2,000 per month if

he committed adultery); Kennedy v. Dep’t of Revenue, TC-MD 111263C, 2012 WL

2024] ADULTERY PROVISIONS 711

Niceta,

217

the spouses signed a postnuptial agreement that required the

husband to pay the wife a lump sum adultery penalty of $7 million.

218

Other agreements use forfeiture language to couch penalties.

219

Such

as in Adams v. Adams,

220

the spouses’ premarital agreement waived any

property or spousal support claims the spouses would have at divorce

but included a financial award to the wife if she refrained from

adultery.

221

Specifically, the agreement entitled the wife to receive

$10,000 for each year of marriage, up to a maximum of $100,000, so

long as she had not engaged in adultery.

222

C. Some Ancillary Issues

Adultery provisions can enter marital contracts in some interesting

ways. Some couples seek to change the evidentiary standards for

determining that adultery has occurred. Others invoke adultery as

justification for invalidating agreements that do not expressly

contemplate adultery. These ancillary issues are considered below.

1. Evidentiary standards

Some adultery penalties go beyond financial stipulations and

attempt to specify the manner in which adultery may be legally

established. Contractual modifications of evidentiary rules raise

challenging policy considerations. Courts generally allow parties to

create their evidentiary rules “in the event of a lawsuit arising from an

alleged breach of their contract, so long as [those rules] do[] not

unduly interfere with the inherent power and ability of the court to

consider relevant evidence.”

223

However, the cases upholding

contractual modifications to evidentiary rules usually have little to do

5077895, at *2 (Or. T.C. Oct. 18, 2012) (evaluating an agreement “provid[ing] that

suspicion of infidelity would subject the spouse so suspected to a polygraph test and,

if found guilty of infidelity, the guilty spouse would pay the other a specified amount

of money in the event of a divorce”).

217

. 284 A.3d 808 (Md. App. 2022), aff’d, 301 A.3d 94 (Md. 2023).

218

. Id. at 816–17.

219

. See Ford v. Blue, 106 S.W.3d 470, 471–72 (Ky. Ct. App. 2003) (highlighting how

the agreement contemplated that lump sum settlement available to the wife at divorce

would be lessened if she committed adultery).

220

. 603 S.E.2d 273 (Ga. 2004).

221

. Id. at 274.

222

. Id.

223

. 7 RICHARD A. LORD, WILLISTON ON CONTRACTS § 15:3 (4th ed. 2023) (footnote

omitted).

712 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

with the divorce setting.

224

For example, courts generally recognize the

validity of so-called integration clauses in contracts, which provide that

a writing constitutes the entirety of the parties’ agreement.

225

Integration clauses have the “effect of precluding the introduction of

parol evidence” to challenge the written agreement.

226

While this type

of provision is commonly enforceable, it raises different policy

concerns than provisions relating to the evidence required to prove

adultery.

Courts are more reluctant to enforce contract provisions that

change an evidentiary rule, standard, or presumption.

227

In states

where adultery remains relevant during a divorce proceeding, existing

jurisprudence or legislation usually establishes the types of evidence

and evidentiary standards required to prove adultery. A number of

states only require proof of adultery by a preponderance of the

evidence rather than by the higher clear and convincing standard.

228

Other states, however, require parties to prove adultery under the

higher clear and convincing standard.

229

Regardless of which

evidentiary standard the law requires, courts routinely allow parties to

prove adultery via circumstantial and indirect evidence because direct

224

. See id. (referencing merger and integration clauses and discussing a “fraternal

benefit insurance contract” as an example).

225

. See id. (noting that integration clauses are “clearly permissible” and “routinely

inserted into contracts,” even though such clauses may preclude the parties from

introducing “parol evidence to vary or contradict their writing” if a court finds that the

integration clauses “reflect the parties’ intent that their writing is fully integrated”); see

also Dwight J. Davis & Courtland L. Reichman, Understanding the Value of Integration

Clauses, 18 FRANCHISE L.J. 135, 135 (1999) (discussing how courts often enforce

integration clauses in different contexts, but “especially in franchise relationships,

where the parties typically are more sophisticated than in ordinary consumer

transactions”).

226

. 7 LORD, supra note 223, § 15:13.

227

. See Colter L. Paulson, Evaluating Contracts for Customized Litigation by the Norms

Underlying Civil Procedure, 45 ARIZ. STATE L.J. 471, 515–22 (2013) (“Courts are much

more reluctant to allow contracts that directly interfere with the evidence they may

consider.”).

228

. GA. CODE ANN. § 19-6-1 (2023); Morgan v. Morgan, 353 So. 3d 1026, 1030 (La.

Ct. App. 2022); Nemeth v. Nemeth, 481 S.E.2d 181, 183 (S.C. Ct. App. 1997) (per

curiam).

229

. Brooks v. Brooks, 652 So. 2d 1113, 1116–17 (Miss. 1995), overruled on other

grounds, Bluewater Logistics, LLC. v. Williford, 55 So. 3d 148 (Miss. 2011); Romero v.

Colbow, 497 S.E.2d 516, 519 (Va. Ct. App. 1998).

2024] ADULTERY PROVISIONS 713

evidence is often not available to establish adulterous conduct, which

tends to occur in private and behind closed doors.

230

Yet, some couples have sought to establish or modify these

evidentiary rules by matrimonial agreement. For example, an Oregon

couple agreed that a polygraph examination would conclusively

determine whether a party had committed adultery.

231

Their

agreement “provided that suspicion of infidelity would subject the

spouse so suspected to a polygraph test and, if found guilty of infidelity,

the guilty spouse would pay the other a specified amount of money in

the event of a divorce.”

232

The enforceability of that interesting

provision was, unfortunately, not an issue before the court.

233

In Thacker v. Thacker,

234

an Alabama couple sought to raise the

evidentiary requirements for adultery.

235

The prenuptial agreement

included a financial penalty payable by the husband in the event of his

adultery as follows:

In the event that adultery is proven by photographic, video, or audio

recording(s), and not by any other means and specifically not by oral

statements or testimony of any person, and the wife initiates divorce

proceedings against [the] husband for that reason, then as part of

that judgment of divorce, and only as part of the judgment of

divorce, [the] husband agrees to pay to the wife the sum of Five

Hundred [Thousand] and No/100 ($500,000.00) dollars as a

property settlement award, payable in one hundred twenty (120)

equal monthly installments of Four Thousand One Hundred Sixty-

230

. See Webb v. Webb, 950 So. 2d 322, 325 (Ala. Ct. App. 2006) (recognizing that

“it is difficult and somewhat rare to prove adultery by direct means,” allowing parties

to prove adultery via circumstantial evidence, and delineating the requisite evidentiary

standards (quoting Fowler v. Fowler, 636 So. 2d 433, 435 (Ala. Ct. App. 1994)));

Morgan, 353 So. 3d at 1030 (stating that parties may use circumstantial evidence to

prove adultery and setting the required standard of proof when a party uses only

circumstantial evidence to prove adultery); Nemeth, 481 S.E.2d at 183 (noting that

proof of adultery will generally be circumstantial “because adultery is an activity that

takes place in private” and setting the appropriate evidentiary standard).

231

. Kennedy v. Dep’t of Revenue, TC-MD 111263C, 2012 WL 5077895, at *2 (Or.

T.C. Oct. 18, 2012).

232

. Id. at *2.

233

. Id. at *5.

234

. 298 So. 3d 502 (Ala. Ct. App. 2020).

235

. See id. at 503 (quoting the couple’s prenuptial agreement, which permitted the

wife to recover damages only if, among other requirements, “adultery [wa]s proven by

photographic, video, or audio recording(s), and not by any other means and

specifically not by oral statements or testimony of any person”).

714 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

six Dollars ($4,166.67) with the first payment due on the first day of

the first month following the entry of the judgment of divorce.

236

The requirement of direct proof of adultery in the Thacker

agreement directly contravenes Alabama divorce jurisprudence. As the

Alabama Supreme Court explains:

It is a fundamental principle of the law of divorce that direct proof

of adultery by evidence of eyewitnesses is not required, for, on

account of the secret nature of the act, it is seldom susceptible of

proof except by circumstantial evidence.

237

To invoke the penalty in Thacker, the wife had to prove adultery by

more exacting evidentiary standards than ordinarily required in a

divorce proceeding. A court certainly could decline to enforce such a

heightened evidentiary rule on public policy grounds.

238

Indeed, the

wife in Thacker argued that public policy rendered the evidentiary

modification unenforceable.

239

The court, however, did not consider

the wife’s plausible public policy arguments.

240

Rather, the court

determined that the evidentiary rule could not be severed from the

penalty itself.

241

The court noted that the adultery provision was

included at the wife’s insistence, but the evidentiary rules were

included at the husband’s insistence.

242

In the court’s view, the adultery

penalty and the evidentiary rule were a quid pro quo for each other,

and one could not be severed from the other.

243

2. Adultery is not a basis for invalidating a marriage contract or a contractual

spousal support or property award

Some litigants, unhappy with the terms of their matrimonial

agreements, argue that the other spouse’s adultery should invalidate

236

. Id. (third alteration in original).

237

. Ex Parte Grimmett, 358 So. 3d 391, 395 (Ala. 2022) (citing Rudicell v. Rudicell,

77 So. 2d 339, 342 (Ala. 1955)).

238

. See Paulson, supra note 227 (citing cases where courts refused to apply, due to

considerations of justice, fairness, and uniformity, contract terms that sought to

change evidentiary standards).

239

. Thacker, 298 So. 3d at 507.

240

. Id. at 508.

241

. Id. at 507.

242

. See id. at 503–04 (noting that the husband would only agree to the “$500,000

additional property-settlement provision” that the wife requested if the prenuptial

agreement included “evidentiary limitations regarding proof of adultery and . . . an

installment-payment provision”).

243

. See id. at 507 n.2, 508 (agreeing with the husband’s argument that “the

evidentiary limitation . . . is not severable from the right the wife seeks to establish”).

2024] ADULTERY PROVISIONS 715

all or a portion of the agreement, notwithstanding the absence of any

express adultery provision.

244

Some of these arguments are couched in

terms of unconscionability.

245

Courts have rejected these arguments,

noting that matrimonial agreements solely exist to contemplate the

financial consequences of divorce.

246

In other words, if the spouses

desired an adultery penalty, they should have included one in the

contract.

247

Other litigants have pointed to the role of adultery in spousal

support laws as a basis for invalidating certain contract provisions. The

results of these arguments have been somewhat mixed. In Maloy v.

Maloy,

248

for example, the husband unsuccessfully argued that the

wife’s adultery should preclude her from receiving a $5,000 payment,

as agreed to in their premarital agreement.

249

The contested premarital

agreement waived spousal support, but provided that the husband

would pay $5,000 to the wife in lieu of court-ordered support.

250

The

agreement did not address the issue of adultery.

251

The husband

argued that the wife’s admitted adultery should preclude the $5,000

payment in its entirety because, under the default state divorce laws,

adultery precluded spousal support.

252

The court avoided considering

the role that adultery might play in contractual spousal support awards

244

. See Noto v. Buffington, No. FA084031102S, 2010 WL 1565554, at *4 (Conn.

Super. Ct. Mar. 22, 2010) (demonstrating the courts’ reasoning that spouses guilty of

adultery forfeit their marriage rights); Vanderbilt v. Vanderbilt, Nos. 11CA0103-M,

11CA0104-M, 2013 WL 1286012, at *7 (Ohio Ct. App. Mar. 27, 2013) (arguing that a

prenuptial agreement was invalid because its terms permitted one spouse to engage in

infidelity).

245

. See Noto, 2010 WL 1565554, at *2 (determining that a prenuptial agreement is

unconscionable because allowing a spouse protection from their own marital

misconduct offends the standards of morality and marital fidelity); Vanderbilt, 2013 WL

1286012, at *10 (“a party may challenge the [otherwise valid] spousal support

provisions contained [in a prenuptial agreement] by demonstrating that the terms

related to spousal support are unconscionable at the time of the divorce.”).

246

. See Noto, 2010 WL 1565554, at *3 (“Premarital agreements are not necessarily

made . . . to be fair to each party in the event of divorce.”); Vanderbilt, 2013 WL

1286012, at *9 (“Because the terms of the agreement . . . are clear, this Court must

look no further than the agreement itself and must give effect to the parties’ intentions

as expressed therein.”).

247

. Noto, 2010 WL 1565554, at *4; Vanderbilt, 2013 WL 1286012, at *9.

248

. 362 So. 2d 484 (Fla. Dist. Ct. App. 1978).

249

. Id. at 484–85.

250

. Id. at 485.

251

. Id.

252

. Id.

716 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

by deciding that the trial court erred in “interpreting this provision as,

in effect, a provision for alimony.”

253

The court did not, however,

explain what the $5,000 payment was if it was not spousal support.

254

Rather, the court explained that if the husband intended to condition

the receipt of the $5,000 payment on the wife’s freedom from marital

fault, then he should have included language to that effect in the

agreement.

255

A line of Louisiana decisions shows how considerable inconsistency

on this question may exist even within a single state. In McAlpine v.

McAlpine,

256

the Louisiana Supreme Court seemed to approve of a

prenuptial agreement where the spouses waived spousal support and,

in exchange, the husband agreed to pay the wife a sum of either

$25,000 or $50,000, depending on the length of the marriage at the

divorce stage.

257

The prenuptial agreement stipulated that the wife was

entitled to the payment regardless of her fault or need.

258

Yet, at least

two subsequent cases involving postnuptial agreements viewed the

issue differently. In both Boudreaux v. Boudreaux

259

and Williams v.

Williams,

260

lower courts in Louisiana refused to enforce contractual

spousal support provisions in postnuptial reconciliation agreements

that required a spouse to pay support, regardless of the fault of the

other spouse.

261

The reasoning in these cases is questionable in light of

the earlier Louisiana Supreme Court decision in McAlpine, and other

later decisions have rejected the approach of those decisions.

262

III. SHOULD ADULTERY PENALTIES BE ENFORCEABLE?

Given the abhorrent roots of adultery in our legal system and

changing social mores, adultery ought to be excised from American

law. So long as it remains, however, some spouses are likely to continue

253

. Id.

254

. Id.

255

. Id.

256

. 679 So. 2d 85 (La. 1996).

257

. Id. at 86.

258

. Id.

259

. 745 So. 2d 61 (La. Ct. App. 1999).

260

. 760 So. 2d 469 (La. Ct. App. 2000).

261

. See 745 So. 2d at 63 (explaining that a requirement for paying alimony even in

instances of fault, such as adultery, would go against public policy); 760 So. 2d at 475

(discussing that it would go against public policy to require a party to pay periodic

spousal support without consideration of their financial capabilities and needs).

262

. See Aufrichtig v. Aufrichtig, 796 So. 2d 57, 62 (La. Ct. App. 2001) (rejecting the

argument that post-divorce alimony violates public policy).

2024] ADULTERY PROVISIONS 717

to demand adultery penalties in their marriage contracts. Even in

jurisdictions where adultery may be considered at the divorce stage, or

where adultery penalties have been previously permitted, there are

viable arguments against enforcement. Courts have not adequately

considered the viability of these arguments. In particular, the doctrine

of unconscionability, the public policy of keeping the recently

divorced off public assistance, and more general limitations on

contractual and punitive damage awards offer viable defenses to the

enforcement of adultery penalties. Each of these factors is considered

below to demonstrate how they could be used as a basis to refuse to

enforce an adultery penalty.

A. Unconscionability

Courts could refuse to enforce some adultery penalties on

unconscionability grounds. The common law doctrine of

unconscionability may render a matrimonial agreement invalid in any

state,

263

other than Louisiana.

264

Matrimonial agreements may suffer

from substantive unconscionability, procedural unconscionability, or

both.

265

Assuming a matrimonial agreement meets the basic

requirements of procedural conscionability, some adultery penalties

may still run afoul of substantive conscionability concerns.

266

The

viability of a substantive unconscionability attack on an adultery

penalty depends, in part, on how the doctrine of unconscionability fits

into a particular state’s marriage contract laws and jurisprudence.

267

In some states, substantive unconscionability is a stand-alone basis

for invalidating a matrimonial agreement. For example, section 9(f) of

the Uniform Marital and Premarital Agreements Act (the “UMPAA”)

provides:

263

. See, e.g., Elizabeth Carter, Rethinking Premarital Agreements: A Collaborative

Approach, 46 N.M. L. REV. 354, 369 (2016) [hereinafter Rethinking Premarital Agreements]

(explaining that the doctrine of unconscionability permits courts to invalidate

contracts or portions of contracts if they contain terms that no reasonable person

would agree to be bound by).

264

. CARTER, supra note 57, at 254.

265

. Richard Craswell, Two Kinds of Procedural and Substantive Unconscionability, U.C.

BERKELEY: L. & ECON. WORKSHOP 1–2 (2010) (defining substantive and procedural

unconscionability).

266

. See, e.g., Balogh v. Balogh, 332 P.3d 631, 643 (Haw. 2014) (explaining that

there are cases where a matrimonial agreement is so one-sided that substantive

unconscionability provides grounds on its own for excluding contract terms).

267

. Id. at 643–44 (noting the varying requirements and approaches to

unconscionability).

718 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

(f) A court may refuse to enforce a term of a premarital agreement

or marital agreement if, in the context of the agreement taken as a

whole[:] [(1)] the term was unconscionable at the time of signing[;

or (2) enforcement of the term would result in substantial hardship

for a party because of a material change in circumstances arising

after the agreement was signed].

268

This approach allows an agreement to be declared invalid due to

either substantive or procedural unconscionability. Courts may deem

adultery provisions substantively unconscionable and invalid in states

taking this approach, as is explained below.

Other states require both substantive and procedural

unconscionability. This is also the approach taken by the Uniform

Premarital Agreement Act (the “UPAA”).

269

Under the UPAA, a

premarital agreement is not enforceable if “the agreement was

unconscionable when it was executed” and there were certain other

procedural deficiencies in the execution of the agreement.

270

particular, a finding of unconscionability and a finding that the party

challenging the contract either (1) did not receive “a fair and

reasonable disclosure of the property or financial obligations of the

other party;” (2) did not waive the right to receive such a financial

disclosure; or (3) “could not have had[] an adequate knowledge of the

property or financial obligations of the other party” will invalidate the

contract.

271

In other words, substantive unconscionability alone is

insufficient to invalidate a premarital agreement in UPAA states.

272

The

substantive unconscionability must be accompanied by some specific

procedural deficiency to invalidate the agreement. Some non-UPAA

states employ a similar test.

273

However, not all UPAA states adhere to

this approach. In adopting the UPAA, some states modified the

language of the model law to retain substantive unconscionability as a

stand-alone basis for invalidating a matrimonial agreement.

274

268

. UNIF. PREMARITAL & MARITAL AGREEMENTS ACT § 9(f) (UNIF. L. COMM’N 2012).

269

. UNIF. PREMARITAL AGREEMENT ACT (UNIF. L. COMM’N 1983).

270

. Id. § 6.

271

. Id.

272

. See Carter, Rethinking Premarital Agreements, supra note 263, at 370 (clarifying

that UPAA states require that a party establish unconscionability and that the party was

not fairly on notice of the agreement’s financial obligations prior to execution).

273

. See id. at 371 (listing, for example, Connecticut, Iowa, Nevada, and Utah and

other modified UPAA states).

274

. See id. (discussing how UPAA states may refuse enforcement of marital

agreements if they appear to be involuntary); see also In re Marriage of Shanks, 758

2024] ADULTERY PROVISIONS 719

In states where substantive unconscionability is a stand-alone basis

for invalidating a provision in the marriage contract, courts should

apply the doctrine to some adultery penalties. An agreement is

substantively unconscionable when it is “so one-sided as to shock the

conscience of the court.”

275

An agreement that is simply unfair or

inequitable does not meet this threshold.

276

Rather, the one-sidedness

must be egregious.

277

Some adultery penalties may meet this

requirement. One could imagine that a provision that only applies to

one spouse or that applies different standards of conduct to each

spouse may fit that description. Likewise, adultery penalties that are

excessive in terms of their amount might be deemed unconscionable.

Although few courts have considered whether an adultery penalty is

unconscionable, courts have ample experience considering whether

marriage contracts contain other substantively unconscionable

terms.

278

To be unconscionable, courts generally require a finding that

the agreement was severely economically one-sided.

279

For example, in

Bedrick v. Bedrick,

280

the Connecticut Supreme Court found that

changed circumstances rendered a postnuptial agreement

unconscionable due to economic one-sidedness.

281

The couple

divorced nearly two decades after the last amendment to their

N.W.2d 506, 513–14 (Iowa 2008) (noting how the Iowa UPPA allows Iowa courts the

ability to address unconscionability claims—outside of the scope of financial

disclosures—by using “fairness reviews”).

275

. Lloyd v. Niceta, 284 A.3d 808, 821 (Md. Ct. Spec. App. 2022) (quoting Li v.

Lee, 62 A.3d 212, 227 (Md. Ct. Spec. App. 2013)), aff’d, 301 A.3d 94 (Md. 2023).

276

. See Bedrick v. Bedrick, 17 A.3d 17, 28 (Conn. 2011) (explaining that

determination of unconscionability is based upon “whether enforcement of an

agreement would work an injustice”).

277

. See Marriage of Shanks, 758 N.W.2d at 516 (explaining that courts cannot base

their decisions upon financial inequalities, but rather upon a showing of harsh

agreement terms).

278

. See, e.g., Bedrick, 17 A.3d at 28 (noting that the question of unconscionability is

well established within the law); Marriage of Shanks, 758 N.W.2d at 513–14 (discussing

how a review for unconscionability is more circumscribed than a review for inequality);

Blue v. Blue, 60 S.W.3d 585, 590 (Ky. Ct. App. 2001) (considering the factors that

render an agreement unconscionable).

279

. Compare Grabe v. Hokin, 267 A.3d 145, 153–54 (Conn. 2021) (requiring a

finding of a dramatic change in economic status to find unconscionability), with Blue,

60 S.W.3d at 590 (finding that because the financial status of the parties was disparate

even before the marriage agreement, an increase in the assets of one party does not

render the agreement unconscionable).

280

. 17 A.3d 17.

281

. Id. at 29.

720 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

postnuptial agreement.

282

The wife agreed to waive her rights to

spousal support and a property division in exchange for a lump sum

payment of $75,000.

283

At the time of divorce, the marital estate was

worth $927,123.

284

The Court held that the monetary discrepancy was

clearly unconscionable.

285

Lane v. Lane

286

is a similar case from the

Kentucky Supreme Court involving a prenuptial agreement.

287

The

prenuptial agreement in Lane waived spousal support and provided

that each spouse’s property would remain separate and not subject to

division during a divorce proceeding.

288

The spouses had vastly

different estates when the agreement was signed, and the disparity was

even greater by the time of divorce.

289

Again, the court found the one-

sidedness to be unconscionable.

290

Courts should apply the same

standards to adultery penalties. If the outcome of the adultery penalty

is comparable to a one-sided economic agreement, then the adultery

penalty should be thrown out.

Lloyd v. Niceta

291

is one of the only cases to consider the merits of an

unconscionability argument as applied to an adultery penalty.

292

The

penalty in Lloyd v. Niceta was exceptionally large, $7 million.

293

Applicable Maryland law required findings of both procedural and

substantive unconscionability to invalidate the agreement—a difficult

standard.

294

The appellate court considered the question of

unconscionability in some depth.

295

There were insufficient facts to

support the husband’s argument that the agreement was procedurally

unconscionable.

296

The court explained that the $7 million penalty was

282

. See id. at 21–22 (stating that the parties executed their final amendment in

1989 and sought divorce in 2007).

283

. Id. at 22.

284

. Id.

285

. See id. (reasoning that the financial situations of the parties had changed

drastically, which would make enforcement of the marital agreement unjust).

286

. 202 S.W.3d 577 (Ky. 2006).

287

. Id. at 578.

288

. Id.

289

. Id.

290

. Id. at 580.

291

. No. 33, 2023 WL 5604203, at *1 (Md. Aug. 30, 2023).

292

. Id. at *1–2.

293

. Id. at *1.

294

. Lloyd v. Niceta, 284 A.3d 808, 821 (Md. Ct. App. 2022).

295

. Id. at 821–22.

296

. Id. Indeed, when each party engages competent counsel, it is unusual to see a

procedurally unconscionable agreement. The court could have ended the analysis

upon determining that the agreement was procedurally adequate.

2024] ADULTERY PROVISIONS 721

not substantively unconscionable because it was not too one-sided

when the couple’s overall financial situation was considered.

297

The

Supreme Court of Maryland likewise approved of the provision;

however, the question of substantive and procedural unconscionability

was not before that court on appeal.

298

The appellate court’s decision

presents a practical problem for drafting attorneys. Although the court

ultimately held that the agreement was not unconscionable, the

decision accepted the notion that an adultery provision could be

unconscionable under the right factual scenario.

299

Realistically, it will

be difficult, if not impossible, for a drafting attorney to know how large

of a penalty is too large.

A penalty like the one in Agulnick v. Agulnick

300

is another likely

candidate for an unconscionability argument.

301

The agreement

provided that if the husband engaged in another affair, “that the wife

would receive 80% of his future gross lifetime earnings from all

sources, minus FICA, and 80% of all marital assets.”

302

The husband

also agreed to assume the entirety of certain liabilities and to “pay the

wife her marital share of the value of his medical license.”

303

The

Agulnick court did not consider the enforceability of this provision.

Such an extreme one-sided provision could, and probably should, be

rejected on substantive unconscionability grounds in states where

substantive unconscionability is a stand-alone ground for invalidating

provisions in marriage contracts. While courts have held that adultery

is not particularly outrageous in the modern era,

304

an agreement to

forfeit 80% or more of a spouse’s assets in the event of an affair does

seem shocking.

Other aspects of adultery penalties may also run afoul of

unconscionability notions, though jurisprudence on the issue is

297

. Id. at 825.

298

. See Lloyd, 2023 WL 5604203, at n. 9 (describing the petitioner’s other

challenges rejected by the appellate court, which were not considered on appeal).

299

. See Lloyd, 284 A.3d at 830 (finding that provisions regarding adultery have the

potential to create fear in a marriage).

300

. 136 N.Y.S.3d 462 (2020).

301

. Id. at 466.

302

. Id.

303

. Id.

304

. See Norton v. Hoyt, 278 F. Supp. 2d 214, 222 (D.R.I. 2003) (observing that an

affair does not constitute outrageous conduct), aff’d, 407 F. 3d 501 (1st Cir. 2005);

Quinn v. Walsh, 732 N.E.2d 330, 339 (Mass. App. Ct. 2000) (recognizing that an affair,

even one intended to cause emotional harm, does not constitute outrageous conduct).

722 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

practically non-existent.

305

For example, agreements that penalize

conduct that is not generally considered adultery under even the

broadest view of adultery might be deemed unconscionable for

intruding too far into a spouse’s right to privacy.

306

An agreement that

seeks to penalize a spouse for masturbating, having fantasies that are

not acted upon, or simply viewing pornography may go too far in

regulating private conduct.

307

One-sided adultery penalties could likewise be deemed

unconscionable on policy grounds. It seems patently unfair to subject

one spouse to an adultery penalty but not the other spouse. Regulating

one spouse’s sexual life and not the other spouse’s harkens back to the

outdated and abhorrent notion that the wife is her husband’s

property.

308

Courts have not adequately considered unconscionability

arguments with one-sided adultery provisions. For example, in Adams

v. Adams,

309

the parties entered into a premarital agreement where

each side waived all property and support claims.

310

Given the

substantial disparities in the size of each spouse’s estate, the waiver

benefitted the husband.

311

In exchange for the waiver, the husband

agreed to pay the wife $10,000 per year of marriage up to a maximum

of $100,000 provided that the wife did not “become involved in a

305

. JoAnne Sweeny Dr., Undead Statutes: The Rise, Fall, and Continuing Uses of

Adultery and Fornication Criminal Laws, 46 LOY. U. CHI. L.J. 127, 155 (2014) (discussing

the expansion of alimony penalties to include cohabitating ex-spouses even after

finalizing their divorce). But see Deborah L. Rhode, Why is Adultery Still a Crime?, L.A.

TIMES (May 2, 2016, 5:00 AM), https://www.latimes.com/opinion/op-ed/la-o

e-rhode-decriminalize-adultery-20160429-story.html [https://perma.cc/D5V4-DFQ2]

(suggesting that adultery laws should reflect the rising public tolerance and lack of

prosecution of adultery, yet it remains illegal in twenty-one states).

306

. See Martin J. Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 J.

FAM. L. 45, 61–62, 64, 89–90 (analyzing the implications of the right to privacy on

adultery laws, especially considering how broadly laws may classify adultery).

307

. See generally id. (discussing the extent of a recognized right to privacy within

marital affairs).

308

. See Lynn v. Shaw, 620 P.2d 899, 901 (Okla. 1980) (reasoning that a husband’s

cause of action for adultery rests on the common law notion that he has a property

right in his wife); Tinker v. Colwell, 193 U.S. 473, 481 (1904) (“We think the authorities

show the husband has certain personal and exclusive rights with regard to the person

of his wife . . . .”).

309

. 603 S.E.2d 273 (Ga. 2004).

310

. Id. at 274.

311

. See id. (stating that at the time they were married, the husband’s assets were

valued at $4,526,708 while the wife’s assets were valued at only $30,000).

2024] ADULTERY PROVISIONS 723

sexual relationship with another person during the marriage.”

312

The

agreement did not include any corresponding penalty for the

husband’s adultery.

313

When the couple divorced, the wife accused the

husband of adultery.

314

The wife asked the court not to enforce the

agreement on the basis of unconscionability.

315

In addition to the

financial disparity created by the agreement, the wife argued

vigorously in her brief to the Georgia Supreme Court that the one-

sided adultery penalty was unconscionable.

316

The court was apparently

unmoved by the wife’s argument because, in upholding the

agreement, the court largely ignored the one-sided adultery penalty,

instead focusing its analysis on whether the financial disparity between

the two was unconscionable.

317

Given the gendered history of adultery

in our law, particularly as it has affected women, the court should have

given the wife’s arguments greater consideration.

B. Public Assistance

Many states impose a public assistance limitation on the

enforceability of marriage contracts as a matter of public policy.

318

This

limitation allows a court to modify the terms of a marriage contract

where the agreement would leave a spouse reliant on public

assistance.

319

Public assistance limitations reflect the notion that “the

state’s interest in not having the spouse become a public charge

outweighs the parties’ freedom to contract.”

320

Both the UPAA and

UPMAA codify this view to some extent. Section 6 of the UPAA

provides as follows:

312

. Brief of Appellant at 6, Adams, 603 S.E.2d 273 (Ga. 2004) (No. S04F0841).

313

. Id. at 10.

314

. Adams, 603 S.E.2d at 274.

315

. Brief of Appellant, supra note 312, at 6.

316

. See id. at 10–12 (asserting that the agreement is unconscionable in multiple

respects, most prominently shown in the one-sided nature of multiple provisions of

the agreement).

317

. See generally Adams, 603 S.E.2d at 273 (holding that a greater disparity at the

time of divorce than was already present between the husband and wife at the time of

the antenuptial agreement does not render such an agreement unconscionable).

318

. See Rider v. Rider, 669 N.E.2d 160, 163 (Ind. 1996) (assessing how more states

are codifying their interest in not providing for the spouse over their interest in parties’

freedom to contract).

319

. See id. (requiring spousal support notwithstanding an antenuptial agreement

stating otherwise when one party is eligible for public assistance at the time of the

divorce).

320

. Id.

724 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

If a provision of a premarital agreement modifies or eliminates

spousal support and that modification or elimination causes one

party to the agreement to be eligible for support under a program

of public assistance at the time of separation or marital dissolution,

a court, notwithstanding the terms of the agreement, may require

the other party to provide support to the extent necessary to avoid

that eligibility.

321

Section 9 of the UPMAA contains a nearly identical provision.

322

adultery penalty tied to spousal support could be declared invalid

under this provision if the outcome was too financially ruinous to one

of the spouses. However, few courts have even considered this

language of the UPAA, much less applied it in the context of an

adultery provision. In the appropriate case, however, this analysis

could be used as a basis for refusing to uphold an adultery provision.

C. General Limitations on Liquidated Damage Awards.

General limitations on liquidated damage awards may provide the

most compelling argument for refusing to enforce adultery penalties

as a public policy matter; yet most courts have not considered the issue.

They should. Regardless of how they are structured, contractual

adultery penalties presumably try to achieve several goals: (1) to

compensate the innocent spouse for the emotional and reputational

harms caused by the other spouse’s adultery; (2) to deter a spouse from

cheating for fear of financial penalty; and (3) to punish a spouse for

cheating. Thus, contractual adultery penalties seek to provide for the

same types of damages afforded by the traditional amatory torts—

compensatory and punitive damages.

323

Courts should consider

refusing to enforce adultery provisions that seek to create contractual

remedies for these awards.

A general rule of contract law is that parties may agree to liquidated

damages provisions in a contract provided that “the amount agreed on

is not unconscionable, is not determined to be an illegal penalty, and

is not otherwise violative of public policy.”

324

Adultery penalties tend to

run afoul of all these limitations. As explained above, the size of a

particular adultery penalty may be unconscionable and provide an

321

. UNIF. PREMARITAL AGREEMENT ACT § 6(b) (UNIF. L. COMM’N 1983).

322

. UNIF. PREMARITAL & MARITAL AGREEMENTS ACT § 9(e) (UNIF. L. COMM’N 2012).

323

. See discussion supra Section I.B.1 (exploring how damages for amatory torts

were often rooted in antiquated views of women as men’s property, valuing them based

on their desirability).

324

. 24 LORD, supra note 223, § 65:1.

2024] ADULTERY PROVISIONS 725

independent basis for refusing to enforce the penalty.

325

Similarly, one-

sided adultery penalties may likewise be unconscionable.

Most adultery penalties will also contravene one of the other two

limitations on liquidated damages. Emotional distress damages are not

generally permitted in breach of contract actions, particularly when

there is no physical injury or illness.

326

Moreover, emotional distress

damages stemming from breach of the marital obligation of fidelity

have been widely rejected by American courts and legislatures for

policy reasons.

327

There are, of course, some exceptions to this general

rule. For example, emotional distress damages may be allowed for

breaches that amount to tortious conduct for which punitive damages

are allowed.

328

Adultery penalties seek to contractually stipulate the

emotional damages stemming from a breach of the marital contract

and its obligation of fidelity. As discussed in Section I.B.2, however, tort

actions relating to hurt feelings stemming from adultery have been

rejected by most American jurisdictions for public policy reasons.

329

Allowing contractual damages for emotional harms stemming from a

breach of the marital obligation of fidelity only occurs when a written

marriage contract seems incongruous with those overarching public

policy concerns. Indeed, a spouse with a marriage contract is no more

or less harmed by infidelity than a spouse without a marriage contract.

Moreover, the overwhelming trend in fault-relevant divorce states is

to refuse to consider adultery for reasons of punishing a guilty spouse

or rewarding an innocent spouse.

330

Courts repeatedly point to public

policy concerns in rejecting the idea that adultery can be punished or

that the non-economic harms of adultery should result in financial

325

. See discussion supra Section III.A (describing a prenuptial agreement that was

deemed unconscionable by the court due to a significant wealth disparity between

spouses that grew even more disparate by the time they sought a divorce).

326

. 24 LORD, supra note 223, § 64:11.

327

. See discussion infra Section I.B.2 (illustrating how courts frequently dismiss

IIED suits related to adultery by relying on the abolition of amatory torts, establishing

a public policy that emotional harms from adultery are not compensable through tort

law, preventing litigants from circumventing this public policy with IIED claims).

328

. See 24 LORD, supra note 223, § 64:11 (detailing exceptions to the general rule

prohibiting emotional distress damages where the breach causes bodily harm or

“serious emotional disturbance”).

329

. See, e.g., Koestler v. Pollard, 471 N.W.2d 7, 11 (Wis. 1991) (“[S]uch wrongs as

betrayal, brutal words, and heartless disregard of the feelings of others are beyond any

effective legal remedy and any practical administration of law.”).

330

. See In re Marriage of Cooper, 769 N.W.2d 582, 586–87 (Iowa 2009) (discussing

the reasons for moving to no-fault laws).

726 AMERICAN UNIVERSITY LAW REVIEW [Vol. 73:679

awards to the innocent spouse.

331

For better or worse, this public policy

seems to be widely embraced by American courts, and it seems

incongruous to allow spouses to thwart that public policy by contract.

Finally, adultery penalties likely constitute prohibited penalty

provisions. Generally, liquidated damages provisions constitute illegal

penalties when they are intended to punish or coerce compliance

rather than to compensate for actual harm.

332

Yet, the primary purpose

of most adultery penalties is clearly punitive and coercive. In seeking

to punish and coerce, adultery penalties offend the most basic

principles of liquidated damages. If a significant financial payout is

required or forfeited due to adultery, it cannot reasonably be

described as anything other than a prohibited penalty provision.

Lloyd v. Niceta is one of the only decisions considering the liquidated

damages argument.

333

That opinion ignores the problematic history of

adultery in the law, the repeal of the heartbalm torts, and the general

unavailability of IIED damages in the divorce setting. In short, the

opinion is wholly inadequate. As discussed above, that case involved

the enforcement of a postnuptial agreement with a $7 million adultery

penalty.

334

The Maryland Supreme Court refused to apply the

traditional contractual analysis applicable to liquidated damages

provisions in the marriage setting.

335

The court readily admitted that

the provision intended to coerce the husband to remain faithful and

to punish him if he failed to do so.

336

The court even agreed that the

“lump sum provision would constitute an unenforceable penalty had

the Agreement been a traditional common law contract, rather than a

marital contract.”

337

Yet, the court decided that the liquidated damages

analysis was inapplicable because divorcing spouses are not entitled to

compensatory damages for adultery or other emotional harms in the

divorce setting.

338

Therefore, in the court’s view, the effect of the $7

331

. See discussion infra Part II (explaining that spouses are typically allowed to

enter into marriage contracts on matters not contrary to public policy, and the

enforceability of adultery provisions has sparked divergent opinions among courts—

with one perspective deeming them unenforceable due to public policy concerns,

while another permits such provisions under the broader freedom of contract theory).

332

. 24 LORD, supra note 223, § 65:1.

333

. No. 33, 2023 WL 5604203, at *7 (Md. Aug. 30, 2023).

334

. Id. at *1–2.

335

. Id. at *7–8.

336

. Id. at *13.

337

. Id. at *7.

338

. Id. at *8.

2024] ADULTERY PROVISIONS 727

million penalty was not a substitute for compensatory damages because

compensatory damages are not available at divorce.

339

The adultery

provision clearly attempted to give the wife the right to compensatory

and punitive damages that she would not have otherwise had under

the law.

CONCLUSION

The decision to marry involves taking on certain risks, the most

obvious of which is that the marriage will end in divorce. Some couples

seek to mitigate or plan for that risk by entering into a matrimonial

agreement. While matrimonial agreements may be a good tool for

mitigating risk generally, they have limits. If love, affection, and trust

are insufficient to prevent a spouse from having an affair, a financial

penalty probably will not accomplish that goal either. Yet, some

spouses seek to impose penalties in the event of adultery to prevent the

behavior and to penalize it when it happens anyway. Given the sordid

history of the law’s role in policing sexual mores and women’s sexuality

in particular, spouses should be hesitant to enter contractual

arrangements inviting courts into their sexual lives. Moreover, sound

policy and legal arguments suggest that courts should not enforce such

intimate provisions relating to emotional harm.

339

. Id.