Michigan law provides a a court discretion in awarding a cheating penalty to the innocent spouse. Although fidelity is an obligation in almost every marriage vow, many marriages end because someone cheated. Which begs the question, can you contract a cheating penalty? We recently litigated this issue at the trial level and the answer appears to be no.
In this case, the wife suspected husband of cheating and the husband suspected wife as well. After wife threated divorce husband, he signed a post nuptial agreement providing for a cheating penalty. In this agreement, the husband would have to pay wife a substantial sum if he cheated. Ironically, this agreement provided no penalty for the wife if committed adultery (which is a crime that is never enforced).
As a general proposition, there is a fundamental right to contract that must be protected by allowing parties to contract freely and by enforcing contractual agreements; however, when contracting a cheating penalty the divorce court has broad discretion to enforce an unfair contract.
Fault can play a role in a Michigan divorce, however, in a recent case we argued at the trial level, the court ruled that parties cannot contract a cheating penalty, that is the job of the family court Judge who is charged in making sure the property distribution is fair and equitable under all of the circumstances.
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