Putting Fault Back into Divorce, the Modern Anti-Cheating Clause

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As reported in the news, Tiger Woods and Elin Nordegren might be reconciling.  In 2009, the relationship made headlines when the National Enquirer reported that Tiger was cheating. Two days later, the police were called to their $39 million dollar residence in the middle of the night after Tiger reportedly collided with a fire hydrant and a tree.  What followed was nothing short of a media circus resulting in the disclosure and apology for a series of multiple extramarital affairs during the course of Tiger’s short five year marriage.

This sex scandal seemingly brought down the legendary golfer, one of the most successful and highest paid athletes of all time.  In an effort to mitigate the damage that was done in his personal and professional life, Tiger went so far as to take a hiatus from golf to work on his personal failings.

In the end, the five-year marriage terminated in a divorce with an undisclosed settlement that was rumored to be a $200 million dollar payout to Elin.

This pattern is not uncommon or unusual in a dissolution proceeding.

When the stakes are high (estimated net worth of more than $600M) and the characters are famous, however, the world takes note.

Fast forward, just two years after the divorce, there are reports that Tiger is down on one knee asking for Elin's hand in marriage for a second round.  The catch this time....Tiger is willing to offer a generous premarital agreement complete with an anti-cheating clause that would result in Elin getting more than half of the estimated estate, should he cheat again.

California is a no-fault divorce state, which means that the court will not look at a party’s wrongdoing, or fault, in reaching a judgment.  In other words, while society may frown upon news of infidelity in a marriage and hold one party accountable, the court will not delve into these personal details.  Instead, the court will divide the estate and award support based on objective statutory factors.  Subjecting oneself to an anti-cheating clause, if enforceable, means waiving a substantial right afforded under the law in making infidelity relevant.  Without such a clause, each party is entitled to one-half of the community estate, and a set amount of support, as provided by statute, regardless of fault.

Whether anti-cheating clauses are a trend of the future is yet to be seen.

Money speaks louder than words and in this case, may be enough for Tiger to earn trust and get back in the marriage.  In any event, any agreement proposed, drafted or executed should be reviewed by a skilled attorney to confirm enforceability and avoid future litigation.

Michele Corvi is an attorney with McManis Faulkner whose practice focuses on all aspects of family law, including child custody and visitation, move-aways, domestic violence, child support, spousal support, valuation of property, and division of assets.  For more information, please visit mcmanislaw.com.