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Is Cheating Fair Game for Prenuptial Agreements?

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tigerThe sports world is all aflutter with the National Enquirer’s report that Tiger Woods and Elin Nordegren are considering remarriage. It was also reported that, due to Tiger’s well-documented penchant for philandering, Elin and Tiger’s second marriage will only take place with a premarital agreement that includes a so-called infidelity clause: a clause that calls for a payment of $350 million dollars to Elin in the event that Tiger cheats during the marriage. While this might seem like a quick and easy fix, it is only a fix that can work if the athlete asked to include the clause understands how it works and the possible consequences. It’s critical to understand that laws change over time, so getting up-to-the-minute legal advice is a necessity.

Recent media would have us believe that the sporting world is rife with cheaters. Although cheating in sports (e.g., using performance enhancing substances) is a more recent publically recognized phenomenon, Wood’s past marital transgressions are the type of “cheating” that the public has long expected of its sporting heroes. The list of athletic Casanovas is as long as it is distinguished. In reaction to this phenomenon, athletes’ soon-to-be spouses are beginning to develop anti-cheating devices of their own—most commonly in the form of a premarital agreement that financially penalizes the athlete for playing outside of the boundaries of the marriage.

Infidelity clauses periodically enter the national spotlight after a high-profile person’s intimate life becomes public news. Circa 2000, the tabloids and celebrity magazines covered the $5 million dollar “straying fee” that Welsh actress Catherine Zeta Jones reportedly included in her premarital agreement with actor Michael Douglas. Now, with the recent fallacious story of Tiger and Elin’s $350 million-dollar cheating clause, multiple media outlets are again publishing pieces about designer prenups with exotic lifestyle clauses. All this buzz about “infidelity clauses” may leave many professional athletes and sports agents wondering: Would these clauses stand up in court? The answer: They very well could.

Premarital agreements are private documents, negotiated by licensed attorneys who have a confidential relationship with their clients; thus the details of most celebrity and professional athletic prenuptial agreements do not make it into the public domain. Consequently, there are very limited statistics on the enforceability of premarital agreements that contain infidelity clauses. Most information gleaned from an interested athlete on the subject comes from a family law lawyer’s own experiences or through discussions with colleagues who have successfully negotiated a premarital agreement and were subsequently divorced.

Although, each state has enacted its own law regarding the requirements for entering into and enforcing premarital contracts, a majority of states have adopted some version of the Uniform Premarital Agreement Act. Generally speaking, a premarital agreement is a contract that can contain virtually any type of provision. The primary restrictions on topics of a prenup are that it cannot be in violation of public policy and it cannot negotiate child custody, visitation, or child support. While there are fail-safes in these statutes, they favor the spouse that waives support rights. There are no safety valves for the moneyed spouse who agrees to pay more than he or she can afford either for a property settlement, support or, in this case, a penalty clause. Any penalty clause should have a limit that is not based on a dollar amount so that if the athlete suffers financial reverses before the clause is enforced, the enforcement does not bankrupt him.

Although United States courts typically enforce premarital agreements, as long as the agreement meets the requirements for a valid premarital agreement, courts are not uniform in their enforcement of provisions within premarital agreements that regulate the conduct of the parties’ during the marriage.

Take Florida and California, for example. In the 2002 case of Diosdado v. Diosdado, a California Appellate Court reviewed an infidelity clause where the parties agreed to be emotionally and sexually faithful to each other. Specifically, the prenup entitled either spouse to $50,000 if the offending spouse voluntarily engaged in “any act of kissing on the mouth or touching in any sexual manner” with someone else during the marriage. The California Court of Appeals found that an “agreement [that] provided for payment of liquidated damages in the event husband was sexually unfaithful, was unenforceable as contrary to public policy,” reasoning that a fault-based clause was contrary to the public policy underlying California’s no-fault divorce laws. Although California courts will generally not enforce an infidelity clause, the Supreme Court of Florida has upheld “unreasonable agreements” as long as they are freely entered into as a means of protecting individuals’ rights to their freedom to contract. Whether or not a premarital agreement is enforceable is greatly dependent on the jurisdiction where the litigation takes place. Even though parties can waive some rights they have by statute, they cannot waive items that are void as going against public policy.

When faced with the demand of including an infidelity clause in premarital agreement negotiations, the initial reaction from a client may be: How do I say no to that? That is why it is imperative to employ an expert who can respond as follows:

“My client agrees to make a payment of X amount of dollars in the event that Husband is found engaged in an extramarital affair, (i.e., any form of sexual conduct including, but not limited to, [insert outrageous definition here]), only if Wife has fulfilled the following marital duties: [insert outrageous duties here] within thirty (30) days prior to any infidelity. If Wife has not fulfilled her above-listed marital duties in the 30 days prior to any infidelity, then the infidelity clause is void.”

When opposing counsel responds aghast, an appropriate reply is to state that the parties should not be wasting the attorneys’ time and the client’s money on negotiating terms that are possibly unenforceable, definitely boorish, and certainly not in the best interest of the pending marriage. Premarital agreements should promote parties to stay married, not provide cash incentive to jump from the marriage at the first sign of problems. While some lawyers believe that infidelity clauses help alert the parties to each other’s expectations about the marriage, infidelity clauses and other expectations between parties to a marriage are better communicated to each other during intimate conversations, not around an attorney’s conference room table.

No matter how well-heeled or progressive the couple, the negotiation of a premarital agreement is an extremely delicate affair that must be handled with the utmost professionalism and expertise. Most soon-to-be spouses find it off-putting to be entangled in financial negotiations about their “future” divorce prior to the honeymoon. An athlete’s family law attorney must be able to protect his client’s interest and convey his client’s demands for what is to be included in the premarital agreement without alienating the fiancé before the wedding day. This delicate balancing act is best handled by an experienced family law attorney who can ensure that the agreement will be beneficial to his client when it is enforced by a judge 5, 10, or even 35 years down the road.

About Evan D. Whitfield and Thomas F. Villanti

Evan D. Whitfield and Thomas F. Villanti are attorneys at Schiller DuCanto & Fleck LLP who concentrate their practice on complex family law cases, including distribution of multimillion dollar estates and complicated child custody disputes. They both focus their practice on the interplay between aspects of family law litigation involving sports and entertainment professionals and their families. Evan is an Olympian and retired professional athlete and Thomas’ family is involved in the representation of professional athletes.

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