NEW YORK, NY - Couples in Manhattan considering prenuptial agreements sometimes seek to include infidelity clauses that impose financial consequences if a spouse commits adultery during the marriage, but the enforceability of such provisions under New York law remains uncertain. Manhattan family law attorney Richard Roman Shum of the Law Office of Richard Roman Shum, Esq., PLLC (https://www.romanshum.com/blog/what-is-the-prenup-infidelity-clause/) is providing guidance on what infidelity clauses are, how they are drafted, and how New York courts have approached their enforcement.
According to Manhattan family law attorney Richard Roman Shum, a prenuptial agreement under New York Domestic Relations Law Section 236(B)(3) is a contract made before marriage that can govern property division, maintenance, and other terms of the marriage relationship. To be enforceable, the agreement must be in writing, subscribed by the parties, and acknowledged in the manner required for a deed. An infidelity clause within that agreement specifies financial penalties if one spouse commits adultery, typically requiring the offending spouse to pay a predetermined amount, forfeit certain assets, or give up entitlement to spousal support. “These clauses vary significantly in how they define infidelity,” explains Shum. “The definition, the proof standard, and the penalty structure all affect whether the clause will carry meaningful weight if a dispute arises.”
Manhattan family law attorney Richard Roman Shum notes that because New York is a no-fault divorce state under DRL Section 170(7), courts do not require either party to prove wrongdoing to obtain a divorce. This framework shapes how judges view contract provisions that penalize specific marital conduct. The New York appellate authority does not establish a bright-line rule that all infidelity clauses are unenforceable, but enforcement remains uncertain, and courts apply heightened scrutiny to provisions that impose penalties based on personal conduct within marriage.
Attorney Shum emphasizes that several factors affect whether a New York court will enforce an infidelity clause. Courts are cautious about enforcing terms that may conflict with public policy, and a provision that imposes financial consequences for behavior that no-fault divorce law treats as legally irrelevant to the dissolution of a marriage may face judicial resistance. Proof of infidelity presents practical challenges, as adultery is often established through circumstantial evidence, and evidence from someone other than the spouses is ordinarily needed when adultery is asserted. “Financial penalties must be reasonable and proportional to survive legal scrutiny,” Shum adds. “A penalty that strips one spouse of all assets for a single act is more likely to be considered unconscionable by a court.”
The team at the Law Office of Richard Roman Shum, Esq., PLLC advises that a valid infidelity clause should clearly define what conduct constitutes infidelity, specify the standard of proof required to establish a violation, and include confidentiality provisions that limit how evidence may be used. Vague definitions and extreme penalties both increase the risk that a court will decline to enforce the clause. How the infidelity clause fits within the prenuptial agreement as a whole also matters, as a balanced agreement entered into by both parties with independent legal counsel and adequate review time stands a stronger chance of being upheld.
Under New York law, spousal support is determined by DRL Section 236(B) based on financial factors such as each spouse’s income, earning capacity, and the length of the marriage. Marital misconduct, including infidelity, is not a standard factor in those calculations. An infidelity clause does not automatically alter what a spouse receives in support or assets, but if a court chooses to enforce the clause, the specified penalties could effectively reduce the offending spouse’s share. “If both spouses committed infidelity, many agreements address this by voiding the clause or treating the violations symmetrically,” observes Shum. “Without such a provision, a court in a no-fault state is unlikely to impose penalties based on mutual fault.”
Contested prenuptial agreements that proceed to litigation in Manhattan are handled by the Matrimonial Part of the New York County Supreme Court, located at 60 Centre Street, making careful and precise drafting especially important. There is also a risk that an infidelity clause could compromise the broader prenuptial agreement if a court finds the provision unconscionable or uses it as evidence that the agreement as a whole was overreaching.
For couples considering prenuptial agreements in Manhattan, consulting with a family law attorney experienced in New York matrimonial law may help ensure that provisions are clear, proportional, and aligned with current legal standards.
About Law Office of Richard Roman Shum, Esq., PLLC:
Law Office of Richard Roman Shum, Esq., PLLC is a Manhattan-based family law firm dedicated to prenuptial agreements, divorce, child custody, and spousal maintenance matters. Led by attorney Richard Roman Shum, the firm serves clients throughout Manhattan and New York City. For consultations, call (646) 259-3416.
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