“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 subject that is not even neglected in New York law or justice literature has come . Such a clause seeks to enforce marital fidelity on pain of forfeiture. The authors cite various cases outside the states that have overridden such treaty public order provisions. In Diosdado vs. Diosdado, 97 Cal. apartment 4th 470 (Cal. Ct. App. 2002), “a California Court of Appeals ruled that breach of trust and misconduct clauses are generally unenforceable” because such a contractual provision “directly violates the public policy underlying a no-fault divorce.” The post-marital agreement violated the California requirement that a contract have a “lawful purpose” and was therefore unenforceable.” The article identifies another offensive provision that would have awarded marital property to the wife if the husband had used cocaine. Concerning the marriage of Mehren & Dargan, 118 Cal. apartment 4. 1167 (Cal. Ct. App. 2004). The article identifies Pennsylvania and Tennessee as “the only states where courts have expressly declared breach of trust clauses enforceable, [as] both permit divorce for adultery.”
New York includes adultery as a ground for divorce. Would a breach of trust clause be enforceable under New York law? The analysis here shows that a public policy breach of trust clause would be unenforceable according to a variety of theories.