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Maryland appeals court upholds $7M adultery penalty in post-nup agreement

On Behalf of | Dec 12, 2022 | family law |

A post-nuptial agreement with a provision that a husband would have to pay his wife $7 million dollars if he was unfaithful is valid, according to a recent ruling from Maryland’s Court of Special Appeals.

When the couple landed in divorce court on the grounds of adultery, the husband fought the fee, but the courts rejected his arguments.

Banking heir

The husband, a wealth management advisor, and his wife, reportedly the former social secretary to First Lady Melania Trump, got married in 2006.

The husband is a member of a wealthy and influential New York family who made their money in finance and banking.

In 2014 the wife discovered that the husband was having an affair, according to the court’s opinion.

Pricey penalty for adultery

As part of their reconciliation and in exchange for the wife not seeking a divorce, the husband agreed to a $5 million penalty if he engaged in inappropriate or immoral conduct with his former lover or anyone else outside the marriage.

The husband suggested that the penalty be increased to $7 million as a show of good faith, the court said.

The husband agreed to a strict regimen of behavior. He promised to pay the penalty if he engaged in adultery or other inappropriate conduct. Conduct that could trigger the penalty included sexting and “romantically kissing, hugging, fondling or embracing another person.”

Infidelity clauses, so-called “fling clauses,” are legally binding. An Ocean City family law attorney can provide more details.

The agreement also specified that the husband would take care of their two children and give the wife the marital home upon the ending of the marriage.

The husband and the wife each signed off on the post-nuptial agreement in 2015.

A post-nuptial agreement outlines the rights, responsibilities, and property division of a couple during and upon the ending of the marriage. A post-nuptial agreement is the name used if the agreement is made after the marriage has begun. A pre-nuptial agreement covers similar ground and is made before the couple gets married.

Post-nuptial agreements are valid in Maryland. The state’s top court ruled in 2017 that such agreements are binding when they are fair and not the product of fraud, duress, mistake, or undue influence.

A second affair

According to the opinion, the husband started a second affair in 2018. The wife filed for divorce on the grounds of adultery and asked that the post-nuptial agreement be included in the divorce judgment. The husband asked the trial court to set aside the agreement.

After a three-day trial the court found that the agreement was valid and enforceable. The court did, however, strike the provision in the agreement forbidding the husband from spending money on a future girlfriend, wife, or child.

Appeals court approves adultery penalty

Both the husband and the wife appealed. The wife appealed the court’s finding as to child support.

The husband argued that the agreement was void because it lacked consideration, was unconscionable and stemmed from undue influence.

Consideration refers to the benefit each party receives in exchange for what it gives up in the contract. Contracts must have adequate consideration to be enforceable.

The Court of Special Appeals affirmed the trial court’s decision as to the husband. However, it remanded the case back to the lower court for further proceedings regarding child support.

The appeals court said the wife’s promise not to seek a divorce and to work on forgiving her husband for committing adultery constituted adequate consideration that made the post-nup an enforceable contract. The court noted that under Maryland law an agreement not to bring a legal action is an acceptable form of consideration.

The court upheld the anti-adultery provision. The court said the substantial financial penalty was not against public policy, especially considering the husband’s assets. The court also noted that the husband controlled whether the penalty was triggered.

The appeals court said it didn’t find evidence of the factors such as undue influence or fraud that could cause the agreement to be set aside. Indeed, the court noted that the husband’s attorneys had advised him not to sign the post-nuptial agreement and had opposed the increase in the penalty from $5 million to $7 million.

If you are facing divorce or separation or need a pre-nuptial agreement, an Ocean City family law attorney can help. The attorneys at Maronick Law LLC have experience with Glen Burnie, Annapolis, Baltimore, Essex, Ocean City, Towson, White Marsh family law matters.

Maronick Law LLC is open during the pandemic and continues to meet your legal needs. We can meet with you remotely if you have access to Zoom. You can contact Thomas Maronick at 410-881-4022 or via our website for a free consultation.



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