Would a New York Court Enforce an Adultery Penalty in a Prenuptial Agreement?

Prenuptial agreements can be effective instruments for prospective spouses who want to safeguard their assets and avoid costly conflict if they decide to divorce at some point. New York generally enforces premarital agreements addressing property division and child support terms. However, a document could be thrown out if a spouse’s assent was secured through fraud or undue coercion, or if the terms were unconscionable at the time of execution.

Along with financial terms, some prospective and current spouses seek to include language that punishes their future husband or wife if they are caught having an affair. However, this type of “lifestyle clause” might not be enforced by a New York court, and it could even threaten the validity of the entire prenup.

In New York, premarital agreements are interpreted like other contracts, but there are several reasons why a clause that threatens a cheating spouse with a lesser share of the marital estate or some other penalty might not be put into effect, such as:

• Legal standards — During the marriage dissolution process, New York courts are not inclined to take a position about who is to blame for a breakup. Though adultery remains a ground for divorce, it does not qualify as a factor in an equitable distribution review, unless additional misconduct is identified. Allegations of affairs can get very complicated, and judges are likely to be reluctant about cultivating a he-said/she-said conflict over a prenup penalty.
• Proof — Even if a court is willing to look at whether a lifestyle clause penalty applies, proving that your spouse committed adultery could be difficult. Most premarital agreements don’t include detailed definitions, so there might be questions about whether a specific encounter or social media post triggers the clause.
• Cost — Resolving issues of fact and law can be costly, so determining whether penalty language should be enforced might not make economic sense.

As there has not been a definitive New York decision about the application of adultery penalties or other lifestyle clauses contained in prenuptial agreements, it is important to consult with a qualified New York family lawyer whether you’re looking to negotiate a premarital agreement or you have questions about the language in a document that you previously created.

Bryan L. Salamone & Associates, P.C. provides comprehensive legal counsel on prenuptial and postnuptial agreements to clients throughout Long Island. To make an appointment to discuss your particular concern, please call 1.631.479.3839 or contact us online.