On October 26, 2022, the Maryland Court of Special Appeals ruled against a husband who claimed that the infidelity penalty in a postnuptial agreement between him and his wife was void because it lacked consideration, was unconscionable and was the result of undue influence. Eight years after they married, the wife discovered her husband was engaged in an extramarital affair. As part of the process of reconciliation, the wife asked the husband that, among other things, he enter into a postnuptial agreement that husband would pay $5 million if he engaged in “inappropriate and/or immoral conduct” with his former any new paramour (paramour is a more formal term for an illicit lover of a married person). Husband not only was willing to agree the wife’s multimillion dollar penalty idea, he proposed increasing the penalty to $7 million as a showing of his good faith. Against his lawyer’s advice, husband made the agreement with his wife.
The husband subsequently engaged in another extramarital affair, and so the wife filed for divorce and sought to enforce the $7 million infidelity penalty. Husband objected, but the trial court sided with the wife. Husband then appealed that decision, but the appeals court sided with the wife as well. The court of appeals rejected the husband’s claim that the post-nuptial agreement was not substantively unconscionable where the redistribution of the parties’ assets did not “shock the conscience” of the court even though it created a somewhat imbalanced distribution of assets. The seven million dollar penalty provision in the post-nuptial agreement that was triggered if husband engaged in adultery was not against public policy in the absence of fraud, mistake, duress, or undue influence.
And the court of appeals found that the seven million dollar penalty provision in post-nuptial agreement that was triggered if husband engaged in adultery was not unconscionable given the parties’ assets and that husband controlled whether the provision was triggered. The husband says he will challenge the ruling of the Maryland Court of Special Appeals in the higher Maryland Court of Appeals. If you want to read the decision of the Maryland Court of Special Appeals, I’ve included the link to it below.
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