You cheat, you pay: How new contracts are changing love and religion forever

Love and contracts aren't strange bedfellows at all -- and sometimes it's the deals we make that keep us together

Published May 25, 2015 10:00PM (EDT)

Michael Douglas and Glenn Close in "Fatal Attraction"    (Paramount Pictures)
Michael Douglas and Glenn Close in "Fatal Attraction" (Paramount Pictures)

Excerpted from "Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families"

Law as It Is Re Sexual Agreements

Family law has fumbled when asked to value fidelity in reconciliation agreements. While the vast majority of reported cases on prenups focus on money, a strand of cases addresses topics like sex and religion. If it’s surprising that courts get involved with that, the results of the cases are more surprising still. I’ll start with sex.

For centuries, family law interpreted a woman’s “yes” in her wedding vows to imply a blanket consent to sex any time her husband wanted it. Accordingly, the traditional definition of rape was forcible intercourse with a woman not the defendant’s wife. Marital rape was not a crime until the 1970s, when feminists fomented rebellion and won significant reforms. Today, spouses might make a number of deals about sex: agreeing to frequency, say, or techniques. The law won’t get involved with any of them unless the sex is nonconsensual or other interests are triggered, like bans on public sex. The type of sexual agreement that shows up in case reporters is a reconciliation agreement entered to induce a cheated-upon spouse to take the cheater back.

Case study: Investing in Fidelity: Diosdado v. Diosdado (2002)

After Manuel Diosdado had an affair in 1993, he and his wife, Donna, separated. However, they managed to reconnect and used a signed writing to formalize Manuel’s promise never to cheat again if Donna would take him back. That agreement, they hoped, was an alternative to divorce. Manuel’s attorney wrote its “Obligation of Fidelity” clause, which provided that the couple intended to be in an exclusive relationship premised on emotional and sexual fidelity and mutual trust. It also precisely defined breach as “any act of kissing on the mouth or touching in any sexual manner” anyone outside the relationship and set out the consequences of breach: the cheater would immediately move out of the house and also have to pay the other spouse $50,000 off the top of any property settlement if they divorced.

The Diosdados signed the agreement, moved back in together, and things were fine for five more years. Unfortunately, Manuel had another affair, a breach that landed the Diosdados in divorce court.

Equally unfortunate, to my mind, is the court’s demotion of Donna and Manuel’s formal written reconciliation agreement to a mere deal. It reasoned that because spouses could get divorced without showing fault like adultery, courts couldn’t enforce a reconciliation agreement including a fidelity term. Holding Manuel to his formal written promise, the court said, ran contrary to public policy by undermining the no-fault provisions of California’s divorce laws through testimony about the emotional angst that no-fault divorce meant to banish from the courtroom.

But the court misread the agreement. Donna and Manuel’s agreement didn’t reinstate fault-based divorce. It didn’t say that they could divorce only for adultery or other kinds of fault. All their Ulysses contract did was try to preserve their marriage by creating a clear and immediate consequence—moving out and giving up $50,000 in property—to help Manuel keep his promise. It clearly defined that promise by specifying what counted as infidelity. Donna even had an eyewitness to prove that he breached the agreement. California’s refusal to honor to what amounted to a formal restatement of Donna and Manuel’s wedding vows protects neither marriage nor no-fault divorce. Instead, it encourages the cheaters of the world to continue making this kind of empty promise and punishes the innocent spouses who rely on them.

Indeed, the court in Diosdado explicitly said that California law values Barry Bonds’s right to hoard his property more than Manuel’s promise of fidelity. Quoting from the Bonds case, the court explained that it had the power to displace Donna and Manuel’s judgment of what could save their marriage with what it called the law’s “social policy with respect to marriage:” “Marriage itself is a highly regulated institution of undisputed social value, and there are many limitations on the ability of persons to contract with respect to it.”  By enforcing Barry’s property-hoarding prenup but refusing to enforce Manuel’s promise to forsake all others, the California courts announced that property-hoarding has a higher social value than fidelity.

Another California couple, Monica Mehren and Christopher Dargan, similarly found that Christopher’s written promise to give up some property if he relapsed into cocaine use was merely a deal. Christopher, an attorney, was not bound by the agreement he wrote up himself. I have yet to figure out why family law gives so much contractual freedom to a rich person like Barry Bonds to help him hoard his wealth but so little to spouses like Donna and Monica who try to reconcile after affairs or drug addiction. Family law can do better.

Law as It Should Be Re Fidelity Agreements

The current rule allows cheaters to prosper at their spouses’ expense. Courts should enforce reconciliation agreements like Donna and Manuel Diosdado’s fidelity agreement as well as other so-called “bad boy” clauses like Christopher Dargan’s promise not to slide back into cocaine use. Those clauses don’t reinstate fault-based divorce because they have no effect on the grounds for divorce, only the consequences of conduct that leads to divorce. Even no-fault states sometimes account for fault like adultery in deciding issues like alimony and property distribution on divorce.

The North Carolina Court of Appeals enforced a reconciliation agreement between Linda and Henry Dawbarn. But in that case, Linda got Henry to transfer their three houses to her, the furniture in them, and the couple’s cars shortly after she confronted him about his affair. The marriage lasted nine more years but they ultimately divorced. The court allowed the agreement to stand, reasoning that it didn’t create an incentive for Linda to leave the marriage—which would have violated public policy—since the property transfer had already happened. That kind of technicality helps someone aggressive or furious enough to get that property at the moment of signing, but it would surprise many, and perhaps most, people.

The flip side of the Dawbarn court’s concern is that enforcing a reconciliation agreement would force a couple to stay married. According to Henry Dawbarn, he stayed married to Linda for those nine long years after their reconciliation because the agreement’s terms left him with so little.  Contract law rules police against vagueness and coercion—and indeed might police the arguably unconscionable terms of Henry Dawbarn giving up virtually all of the marital property—and require signed writings as proof of particular kinds of agreements. Those rules should prevent injustices in reconciliation agreement cases. Moreover, since contract law won’t impose a penalty, instead just compensating a victim of breach for actual losses, a court wouldn’t enforce an agreed-upon consequence for infidelity if it seemed wildly out of proportion to the losses suffered because of men or women behaving badly.

Law as It Is Re Religion Agreements

Infidelity originally referred to a straying away from religious doctrine, but today it denotes a breach of the marriage vow. Just as family law treats that promise to forsake all others as a mere deal, it refuses to enforce promises that spouses make to raise their kids a particular religion, reasoning that doing so would violate constitutional principles requiring the separation of church and state. However, some courts are willing to enforce two formal, written religious promises relating to marriage, one Jewish and the other Islamic.

Case study: Getting a “Get”: In re Marriage of Goldman (1990)

When Kenneth and Annette Goldman dissolved their decade-long marriage in 1989, the Illinois courts faced the daunting task of determining whether their Jewish marriage contract known as a ketubah was a binding contract or just a deal. Like many Orthodox Jewish divorcées, Annette sought to enforce the provision that required Kenneth to ask a rabbinical tribunal for a divorce under Jewish law, commonly called a “get.”

While Kenneth and Annette’s ketubah included Kenneth’s promise to “honor and cherish,” as well as “protect and support Annette,” and Annette’s promise to fulfill “all the duties incumbent upon a Jewish wife,” the ketubah was silent on the issue of getting a get. The court nevertheless found this promise embedded within a choice of law clause. In a business contract, a choice of law clause provides that any dispute will be governed by a particular state’s law. In a ketubah, however, that clause took the form of Kenneth’s statement to Annette, “Be thou my wife according to the law of Moses and Israel,” and language right before their signatures that read: “This Covenant of Marriage was duly executed and witnessed this day according to the usage of Israel.” The court found that bringing the agreement within the laws of Moses and Israel imported Jewish traditions and customs, including the rules about Kenneth seeking a get in the event that he and Annette got divorced under civil law.

Deciding that the laws of Moses and Israel applied didn’t resolve the whole problem, however. Jewish law requires that the husband voluntarily approach the rabbis, and Kenneth refused. (The wife cannot request a get.) Though he was Orthodox before marrying Annette— and had granted his first wife a get—he had abandoned Orthodoxy for the more liberal strand of Judaism known as Reconstructionism by the time he and Annette were married. Yet Annette became Orthodox during their marriage. By the time they divorced, Kenneth viewed Orthodoxy as hostile to women, “antimodern” and “repulsive.”

Kenneth knew a lot about hostility to women. Without a get, Jewish law would treat Annette as “agunah”—meaning “chained” in Hebrew—neither married nor unmarried, and thus unable to remarry under Jewish law. Were she to remarry civilly, Jewish law would treat the children of that marriage as the progeny of a forbidden relationship, and thus unable to marry Jews themselves. Initially, Kenneth said he’d give Annette a get if she’d share custody of the kids with him, but he later refused on the ground that she was a “liar” and a “cheat” and that she was “‘going to pay’ for what she’d done to him by being married to him for the rest of her life.” The Illinois courts got around this conundrum by applying another principle of Jewish law that made an exception for abandonment. Since Kenneth had abandoned Annette, it found, Jewish law compelled him to at least grant her a get.

Those customs may seem different from the practices that courts imply in business contracts. The dissenting judge in Goldman thought that the Constitution’s religious freedom protections make the ketubah a promise different from ordinary promises. The majority opinion justified its decision to enforce the ketubah against Kenneth—ordering him to request a get from the Rabbis—by recognizing a civil side of Jewish law, one that deals only with people’s relationship with one another instead of their relationship with God. Under Jewish law, it found, marriage and divorce are secular, contractual undertakings. “Kenneth need not engage in any act of worship nor profess any religious belief,” the court explained, so that the court order compelling him to approach the rabbinical tribunal was not an “excessive entanglement” with religion.

Courts in New York have reached the same conclusion, mostly to require a husband to seek a get, though in a 1926 case the court interpreted the ketubah as giving a widow rights under Jewish law to the house in which she and her husband had lived.43 Reasonable minds, however, can differ. An Arizona court saw the phrase in the ketubah invoking the laws of Moses and Israel as too vague, violating the rule that enforceable contracts must have reasonably certain terms, and others see enforcing ketubahs as breaching the barrier between church and state.

Case study: Muslim Marriage Contracts: Odatalla v. Odatalla (2002)

While fewer Muslim marriage contracts have reached the courts, those agreements, like ketubahs, have been treated as binding agreements. The cases, however, enforce a different contract term. While Jewish wives want to compel their husbands to give them a get, Muslim women getting divorced have asked courts to enforce the “mahr,” a financial provision in their wedding contracts.

Shortly before an imam performed the 1996 wedding of Houida and Zuhair Odatalla at the home of Houida’s parents in New Jersey, her family and Zuhair negotiated the terms of the mahr. Bride and groom both read the agreement, then signed it voluntarily before witnesses, as required by Islamic law. The mahr required the husband to pay the bride a sum certain—“one golden pound coin”—at the time of the wedding and an additional $10,000 “postponed” to another time.

The groom performed part of the agreement by handing Houida one golden pound coin during the wedding ceremony. When Houida filed for divorce in 2002 on the grounds of extreme cruelty, she asked the court to order Zuhair to pay the $10,000 promised in the mahr. Like the ketubah’s silence on the issue of the husband seeking a get, the Islamic marriage contract says nothing about when the bride can demand that her husband fulfill the financial promise he made. Customarily, the wife enforces the promise only at divorce or widowhood, when she’s likely to need money to live on her own.

Courts follow precedent—the rules laid down in prior similar cases. In Odatalla, the New Jersey court followed earlier cases enforcing ketubahs, overcoming the husband’s arguments regarding the First Amendment, vagueness, and public policy. As to religious freedom, the court answered the husband’s contentions with a query asking why a contract promising to pay money should be less of a contract just because it was entered into at the time of an Islamic marriage ceremony. In the court’s view, “[t]oday’s diverse community,” brought into being through immigration of people of various religious beliefs, requires constitutional principles to “keep abreast of these changes in the fabric of our community.”

The New Jersey court’s reasoning on the issue of vagueness segues with material covered in earlier chapters on cohabitation and marriage in that contracts’ terms can come from custom and behavior as well as words on the page. Courts routinely consider evidence outside of a written document—calling it “parol,” meaning “spoken”— as long as it doesn’t contradict the terms of a written agreement. In Odatalla, the court found that the custom of the wife demanding payment of the mahr at the time of divorce or death was consistent with the word “postponed” in the writing that they signed at their wedding. Similarly, courts have considered oral or implicit agreeertments between cohabitants and spouses in cases like Byrne v. Laura and Goldman, especially when there are actions that back up this off-the-page evidence.

The court in Odatalla also rejected Zuhair’s arguments that the mahr violated public policy, just as the court in the Weinschel v. Strople adoption case rejected Bruno Weinschel’s public policy objection to the open stepparent adoption he’d agreed to in his divorce. Far from being against public policy, the court in Odatalla concluded that treating the mahr as a legally binding contract furthered the important public policy of honoring “a custom and tradition that is unique to a certain segment of our current society.”

Law as It Should Be Re Religion Agreements

The Jewish and Muslim marriage contract cases are rightly decided. Like the intimate agreements for parenthood—through repro tech or adoption—or between cohabitants, these agreements deserve to be honored. That means that a mahr might not be enforceable if its particular terms or interpretation undermined public policies, as would be the case if Houida Odatalla got only the $10,000, and lost her civil law rights to property sharing and alimony. Similarly, a contract forcing Donna Diosdado to have sex with Manuel any time he wanted would undermine public policy by allowing him to commit a crime by raping her. Law can recognize contracts while still policing these extreme situations. That recognition encourages spouses like the Odatallas and Diosdados, not to mention the Fleschases, Bonds, and Borellis, to invest in their relationships by making binding exchanges that help them become and stay a family, and also, when necessary, sever that relationship.

Excerpted from "Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families" (Beacon Press, 2015). Reprinted with permission from Beacon Press. All rights reserved.

By Martha M. Ertman

Martha Ertman is a law professor at the University of Maryland Carey Law School and has taught, written, and spoken about contracts and family law for two decades. She edited Rethinking Commodification: Cases and Readings in Law and Culture and lives in Washington, DC, with her family.

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