(a) Incompetency Where Issue Adultery. A husband or wife is not competent to testify against the other in an action founded upon adultery, except to prove the marriage, disprove the adultery, or disprove a defense after evidence has been introduced tending to prove such defense.
§ 4502.Spouse.
Article 45. Evidence · Last amended 1963 · Last verified July 21, 2026
In one sentenceCPLR 4502 keeps a spouse off the stand against the other in an adultery case except to prove the marriage or disprove the adultery, and separately protects confidential marital communications from disclosure by either spouse.
Full Text of CPLR 4502
(b) Confidential Communication Privileged. A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.
Plain-English Summary
CPLR 4502 covers two different problems under one roof. Subdivision (a) sets a narrow kind of incompetence: in a lawsuit built around adultery, a husband or wife cannot testify against the other spouse at all, except to prove they were married, disprove the adultery, or knock down a defense once evidence supporting that defense has come in. That bar cannot be waived; it stands regardless of what the spouses want.
Subdivision (b) is different: it protects confidential communications spouses make to each other during the marriage. Neither spouse can be forced to disclose such a communication, and the spouse who received it cannot disclose it either without the other spouse's consent, if that spouse is still living. Unlike the adultery bar, this privilege belongs to the couple and can be waived.
Frequently Asked Questions
Can my spouse testify against me in a divorce case based on adultery?
Only in limited ways. CPLR 4502(a) bars a spouse from testifying against the other in an action founded on adultery, except to prove the marriage, disprove the adultery, or disprove a defense once evidence supporting it has been introduced.
What is the spousal communication privilege in New York?
CPLR 4502(b) protects confidential communications between spouses made during the marriage; neither spouse can be compelled to disclose one, and the spouse who received it cannot disclose it without the other's consent if the other is alive.
Can the adultery testimony bar be waived?
No. Unlike the marital communications privilege, the incompetency to testify in an adultery case under CPLR 4502(a) cannot be waived by the parties.
Can one spouse reveal a confidential marital communication after the other spouse has died?
The statute requires the other spouse's consent only if living, so that consent requirement under CPLR 4502(b) no longer applies once the other spouse has died.
Does CPLR 4502 stop a spouse from testifying about the marriage itself?
No. Even in an adultery case, a spouse may testify to prove the marriage took place; the bar covers testimony against the other spouse on the merits of the adultery claim.
Advisory Committee Notes
This section is substantively the same as former § 349. The title has been changed from “Testimony of husband and wife in action and proceeding,” the section has been split into two subdivisions, catchlines have been added, and there has been some simplification of the language of subd (a). Subd (a) deals with competency. Its prohibition of testimony on adultery may not be waived. See Taylor v Taylor, 123 App Div 220, 108 NY Supp 428 (4th Dept 1908); Bolognino v Bolognino, 136 Misc 656, 241 NY Supp 445 (Sup Ct), affd without opinion, 231 App Div 817, 246 NY Supp 883 (1st Dept 1930). On the other hand, subd (b) deals with a privilege for confidential communication which may be waived. See People v Wood, 126 NY 249, 271, 27 NE 362, 368 (1891); Parkhurst v Berdell, 110 NY 386, 393, 18 NE 123, 127 (1888). The two subdivisions raise distinctly different problems and separation will facilitate their analysis and use. Cf. Poppe v Poppe, 3 NY2d 312, 314–315, 144 NE2d 72, 73–74 (1957).
Amendment History
Add, L 1962, ch 308, eff Sept 1, 1963.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: spousal privilege New Yorkmarital communications privilege CPLRspouse testify adultery case New Yorkhusband wife testimony divorce