“Infidelity Clauses: Proceed With Caution,” NYLJ (June 10, 2022), by Alyssa Rower, Karina VanHouten and Leo Wiswall, is a very interesting article about a timeless issue that has not even received short shrift in New York legal or judicial literature. Such a clause seeks to compel marital fidelity at the pain of forfeiture. The authors cite various out-of-state cases that invalidated such contractual provisions on public policy. In Diosdado v. Diosdado, 97 Cal. App. 4th 470 (Cal. Ct. App. 2002), “a California appellate court held that infidelity clauses and misconduct clauses, more generally, are unenforceable” as such contractual provision was “in direct contravention of the public policy underlying no-fault divorce. The postnuptial agreement violated California’s requirement that a contract have a ‘lawful object,’ and was therefore unenforceable.” The article identifies another offending provision that would have awarded marital property to the wife if the husband 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 held infidelity clauses enforceable, [as] both allow for divorce on grounds of adultery.”

New York includes adultery as a ground for divorce. Would an infidelity clause be enforceable under New York law? The analysis here establishes that an infidelity clause would not be enforceable pursuant to public policy under a variety of theories.