In a 2023 ruling, the Maryland Supreme Court upheld a postnuptial agreement with a so-called “bad boy” clause—a clause that required a husband to cough up $7 million if he cheated on his wife. While many states balk at enforcing lifestyle clauses in marriage agreements, Maryland was on board, backing its public policy that lets couples use postnups to spell out their own relationship boundaries. Let’s break down the case and explore why Maryland gave the thumbs-up to this infidelity clause.
First, what’s a postnup?
Postnups (short for postnuptial agreements) are like prenups—but created after the wedding day. These legally binding contracts help spouses set terms on property division, financial support (in some states), and other money matters in case they split. In Maryland, postnups are enforceable as long as they meet some key requirements:
- Written, Signed, and Witnessed: The postnuptial agreement must be written, signed by both spouses and ideally notarized. Getting it witnessed by two witnesses is also a good idea.
- Voluntary Agreement: Both spouses must sign willingly—no aggressive nudging, bribing, or arm-twisting.
- Full Disclosure: Complete honesty about assets, income, debts, and finances is non-negotiable.
- Fair and Reasonable Terms: The terms have to be equitable and not wildly one-sided at the time of signing.
Maryland law on postnups
Maryland’s laws on postnups reflect a unique approach that’s both supportive and cautious. Under state law, couples can make binding agreements about their marital assets, allowing them to bypass Maryland’s standard divorce laws with terms they craft themselves (Md. Code, FL § 8-101). Because Maryland is a fault-based divorce state, it even allows couples to consider one spouse’s behavior—like adultery—when dividing marital property (Md. Code, FL § 8-205). So, postnups can be an avenue for spouses to lay down the law on conduct they find unacceptable, such as cheating.
The Lloyd v. Niceta (2023) case
We’re going to break down this pivotal Maryland case for you piece by piece. Let’s dive in.
What went down
So, here’s the back story: Thomas Lloyd, a wealth manager and heir to the Mellon family fortune, married Rickie Niceta, an event planner and former White House Social Secretary in DC, in 2006. Trouble hit in 2018, more than a decade into their marriage, when Niceta discovered Lloyd had been unfaithful. The couple patched things up and, in a bid to make things last, drafted a postnup, with the help of their lawyers, with an eye-opening clause: a $5 million penalty if Lloyd cheated again. Lloyd agreed and even upped the amount to $7 million to show his good faith, signing off on the pricey marital promise (against his own lawyer’s advice). The terms? If Lloyd was found “guilty” of adultery, sexting, or any “inappropriate or immoral conduct,” he’d owe Niceta $7 million—no excuses.
Here is what that provision looked like in the contract:
Lump Sum Monetary Award
1. This provision shall only be effective only in the limited situation that any one of the following conditions are satisfied:
- (i) If Husband is found by a preponderance of the evidence to have committed adultery, buggery or sodomy with any person;
**** - (iii) If Husband is found by a preponderance of the evidence to have engaged in any Inappropriate and/or Immoral Conduct of the following with any other person, including, but not limited to: inappropriate emails; sexting; sending pornographic pictures of himself to the other person; receiving pornographic pictures of the other person; romantically kissing, hugging, fondling, or embracing another person; keeping secret email, cell phone or credit card accounts; or engaging in sexual acts with another person even if it does not lead to intercourse.
2. If Wife proves by a preponderance of the evidence that Husband has engaged in any of the conduct as set forth above in paragraph 10. A, Husband shall make a tax-free transfer to Wife of SEVEN MILLION AND 00/100 DOLLARS ($7,000,000.00) within ninety (90) days of such findings. If the parties remained married, said transfer shall be a permanent gift between husband and wife; if the parties divorce, this transfer shall constitute a lump sum monetary award not subject to taxation under the terms of the Internal Revenue Code. The transfer shall be made from Husband’s 50% share of the Column B Assets.
The Divorce
Fast forward a few years, and Lloyd broke the promise. This time, Niceta filed for divorce and invoked the clause, demanding the agreed $7 million. Lloyd, however, wasn’t ready to pay up and argued the clause was against public policy and unconscionable and shouldn’t be enforced. Enter: the Maryland courts.
The Court’s Analysis
The Maryland Supreme Court wasn’t swayed by Lloyd’s protests. They ruled that Maryland’s public policy supports holding spouses accountable for agreements that address marital misconduct. Because Maryland allows courts to consider fault in divorce and financial awards, the court found that clauses like Niceta’s didn’t go against public policy. Instead, they allowed spouses to address “bad behavior” in their postnups.
The Court also shot down Lloyd’s claim that the $7 million penalty was unconscionable. The Court found that the postnup, which was drafted with their lawyers, was not excessive nor unfair—the couple intended to address Lloyd’s marital conduct financially. They noted that Lloyd had agreed to the amount on his own, even upping it from the original $5 million. Plus, the payout was to come from his own share of marital assets, meaning it was fair game under Maryland law. (§ 8-205(a)(1)). And even more, the Court pointed out Lloyd was the only one who controlled whether the provision would be invoked anyway, which is not unfair to him.
Lloyd v. Niceta, 301 A.3d 94 (2023)
Key takeaways:
- Infidelity Clauses are acceptable in MD Postnups: In Maryland, postnups with infidelity clauses can be enforceable. If both spouses agree and the terms meet the state’s standards, such provisions may very well stick.
- Fair Isn’t Always Equal: Even if a clause seems one-sided, Maryland courts will uphold it if it’s voluntary and reasonable. Here, the court found Lloyd’s pledge was his choice—and his responsibility.
- Fault Counts in Maryland: As a fault-based divorce state, Maryland allows postnups to include clauses that address one spouse’s behavior, showing that what happens during the marriage can have serious financial consequences.
In short, Lloyd v. Niceta solidifies Maryland’s reputation as a state that supports giving spouses autonomy in their marriage agreements. So, if you’re crafting a MD postnup, know that infidelity clauses can stick—at least if you’re signing in the Free State.
Jess Perillo is a legal intern at HelloPrenup, and is currently a third-year student at Suffolk University Law School. She is an Article Editor on Suffolk Law Review, and is especially interested in legal research and writing. Jess is passionate about exploring the ways technology can help close the justice gap and make legal services more accessible.
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