New York Infidelity Clauses, Damages, Public Policy, Tort Liability: Part One

“Infidelity Clauses: Proceed With Caution,” NYLJ (June 10, 2022), by Alyssa Rower, Karina VanHouten, and Leo Wiswall, is a very interesting article on a timeless issue that has not even been overlooked in the legal or judicial literature of New York . Such a clause aims to constrain marital fidelity under penalty of forfeiture. The authors cite various extra-state cases that have invalidated such contractual provisions of public order. In Diosdado versus Diosdado, 97 cal. App. 4th 470 (Cal. Ct. App. 2002), “a California Court of Appeals held that infidelity clauses and misconduct clauses, more generally, are unenforceable” because such a contractual provision was “in violation public policy underlying no-fault divorce. The postnuptial agreement violated California’s requirement that a contract have a “lawful purpose” and was therefore unenforceable. The article identifies another offensive provision that would have attributed matrimonial assets to the wife if the husband had used cocaine. In re Marriage of Mehren & Dargan, 118 cal. App. 4th 1167 (Cal. Ct. App. 2004). The article identifies Pennsylvania and Tennessee as “the only states in which courts have explicitly declared enforceable infidelity clauses, [as] both allow divorce on grounds of adultery.

New York includes adultery as grounds for divorce. Would an infidelity clause be enforceable under New York law? The analysis here establishes that an infidelity clause would not be enforceable under public policy according to various theories.

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