Monday, December 7, 2009


Get all of the Tiger Woods jokes out of your system. He has a mess on his hands for sure. It appears to get messier by the minute. It is really news which deserves to take up our (so it seems) every waking hour?? If one is to believe the reports, he has already amended his prenup to provide for more money now and more money later to his wife if she stays with him. Given, however, the generous helping of glamorous golfer girls being generated, his generosity may prove grimfully gratuitous. OK, not quite William Safire, but it will have to suffice.

If Mr. Woods has in fact amended the agreement and presumably it is done properly, he may very well have locked himself into a big pay day-- with his wife on her way out the door anyway in light of the additional alleged "revelations" of additional affairs. So what about the alleged amendment? Signed, (allegedly)with the expectation or hope that the wife will forgive his (one) indiscretion, by cashing a big check. After all, if it worked for Kobe...

Prenups are looked upon favorably in New York and are afforded great protection. A high burden remains upon the party seeking to set one aside. Courts like resolutions. While an "antenuptial", or prenuptial agreement may contain many of the elements of a separation or settlement agreement, it is, in many ways, a more complicated document. It may address estate rights, property rights, spousal support, custody and child support-with the latter three being subject to additional conditions of enforceability. (The court always maintains jurisdiction to address custody, parenting and child support provisions. Further, spousal support (what used to be called "alimony" and is now "maintenance") must not be "unconscionable". There is still though a quasi-fiduciary relationship between the betrothed to be. The court will look closely at the agreement if someone is challenging it at the time of a divorce and a proper showing is made that the agreement is suspect. In New York, there is now a three year statute of limitations to challenge the agreement which runs "essentially" from the time of commencement of a matrimonial action. The statute, Domestic Relations Law section 250, governs.

A whole host of issues are plentiful in the negotiation and preparation of a prenup and they are not always as simple as one might otherwise think. The goals remain to avoid future litigation in the event of a divorce, to protect the client in accordance with their desires, and not to get in the way of the wedding. That said, having a prenup is not always just for the wealthy or for people who have been divorced before. The idea, as I said, is to come to your own solution in the event of a matrimonial catastrophe. I tell clients its like having an insurance policy. In this case, it is to try and fashion some security beforehand in the event down the line, the marriage does not work out. You then put the document away in a dark place (literally-- and not the back of your mind-- hopefully that is not a dark place) and live your life in a happily married existence. (Yes, that is what I said-- "a happily married existence") Problems occur when a client comes to me the week of the wedding and say they want a prenup and have first told their intended that morning or if they don't want to disclose their financial information or if they want a completely one-sided agreement. Interestingly though, having it signed at the last minute or one party not having an attorney, does not make the agreement unenforceable, but it does raise issues and suspicions which must be overcome.

After inquiring as to the client’s desires and needs, full financial disclosure should be had. This helps eliminate someone being able to say they had no idea what was being given up or what the financial picture looked like. Both parties should have separate attorneys. Questions must be addressed: discuss the financial and life circumstances; are there children from a prior marriage they might want to protect; are there other estate concerns; are there obligations from a prior divorce; are they intending to have children; is one spouse going to leave the workforce for a period of time; do they want to condition distribution of property or support upon length of the marriage or establish complete waivers; do the parties have any property they already own jointly; is there an existing separate residence which one party will have exclusive occupancy of in the event of divorce; how do they want to deal with appreciation of separate property? There are often many other issues to be addressed as well.

The task of representing the client with regards to a prenuptial agreement is one which should be dealt with sensitively as well as professionally. A long happy marriage after all, is the goal. (Really, it is.) So for Tiger Woods, unless there is something really wrong with that alleged amendment, he (a) presumably has a valid agreement, (b) will have to shell out a lot more additional money than he had to before last week and (c) will have a hefty child support obligation if she leaves with custody. But, it will be a lot less then if there was no agreement and they will spend a lot less time in court battling over issues that they have already resolved. Who, after all, wants to spend time in court with lawyers, when you can be preserving your endorsement deals or discussing your new cheating spouse book on Oprah!

Note: Thanks to my friend Stu Cohen, for suggesting this topic since he felt one of my last blogs was "too technical" and "boring". I comment not though on his clear lack of ability to appreciate my prior scintillating posts. To paraphrase Ed Norton, "A pox on him and his ancestors!"