Religion

cbayer

(146,218 posts) Tue May 26, 2015, 09:55 AM May 2015

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

Last edited Tue May 26, 2015, 10:39 AM - Edit history (1)

http://www.salon.com/2015/05/25/you_cheat_you_pay_how_new_contracts_are_changing_love_and_religion_forever/

MONDAY, MAY 25, 2015 06:00 PM

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

MARTHA M. ERTMAN

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.

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