Diosdado

In this case we conclude that a contract entered into between a husband and wife, providing for payment of liquidated damages in the event one of them is sexually unfaithful to the other, is unenforceable.

Factual and Procedural Summary

For the purpose of reviewing this grant of judgment on the pleadings, we take as true the allegations of the complaint and the facts presented to the trial court in an offer of proof.

Donna and Manuel Diosdado were married in November 1988. In 1993, Manuel had an affair with another woman. When Donna learned of this, the parties separated but did not divorce. Instead, they entered into a written “Marital Settlement Agreement” (hereafter the agreement) intended to “preserve, protect and assure the longevity and integrity of an amicable and beneficial marital relationship between them.”

Section 1 of the agreement provides that if either party expresses concern that the goals of the marriage are not being met, they agree to seek counseling and make a good faith effort to resolve their problems to preserve the relationship.

Section 2 is labeled “Obligation of Fidelity,” and provides: “It is further acknowledged that the parties’ marriage…