Family Law Corner: One Journey to Divorce
When White House party-crasher and Real Housewives of Washington D.C. star Michaele Salahi did not show up for a hair appointment, her husband Tareq quickly notified law enforcement. Tareq claimed his wife may have been kidnapped, when in fact she had run off with guitarist Neal Schon of the famed San Francisco band, “Journey.” The Salahis are best known for crashing the 2009 White House State Dinner.
Now that Tareq Salahi has filed for divorce, the gossip website TMZ has published a copy of the parties’ prenuptial agreement, which contains a “lifestyle” or “infidelity” clause. Specifically, the clause only applied to Michaele, and under its terms, if Michaele initiated a divorce under “no-fault” grounds or if she committed adultery during the marriage (thus allowing Tareq to file for divorce under “fault” grounds), she agreed to waive her rights to joint property.
In states which allow couples to file for divorce on fault grounds, the most common grounds are adultery, desertion, cruelty and conviction of a felony. These states allow the court, when dividing property and determining support, to consider the contributions, both monetary and non-monetary, that each party made toward promoting or destroying the family unit. Fidelity clauses in prenuptial agreements which are enforced in fault states are therefore presumptively valid. Assuming that the Salahi’s divorce is adjudicated in Virginia, Michaele may have waived her rights to valuable marital property.
However, such clauses violate the public policy “no-fault” states like California. Provisions in a prenuptial agreement that seek to impose moral or religious conduct upon the parties during the marriage, limit child
support obligations or divest the Court of the power to make custody decisions in the event of a divorce are against California public
policy. In Diosdado v. Diosdado 97 CA4th 470 (2002), a provision in the parties’ postnuptial agreement that contained a liquidated damages clause of $50,000 payable if a party was unfaithful rendered the agreement unenforceable. In Marriage of Mehren & Dargan 118 Cal.App.4th 1167 (2004), cocaine-addict husband’s agreement to forfeit his right to certain property in the event he deliberately ingested mind altering chemicals was also found to be unenforceable.
The Court of Appeal in Mehren stated "[w]e see little analytical difference between the angst experienced by the wife in Diosdado and the angst undoubtedly suffered by wife here. In this case too, the agreement purports to award a community property premium because of the behavior of husband. Thus, as in Diosdado, the agreement attempts to avoid the no-fault provisions of Family Code §2310.”