Jennifer M. Paine, Attorney at Law at Cordell & Cordell, P.C., helps SingleDad.com members understand the Tiger Woods rumors.
Truth be Told: Tiger's Tabloid Myths Untangled
| Author: Jennifer M. Paine | Posted: 01/25/10 | ||
|
|||
Break out the paparazzi and the popcorn; it’s time for another celebrity divorce drama. I will venture to guess that celebrity divorces are the second most followed legal event in Hollywood, second only to celebrity DUIs accompanied with the occasional rehab check-in, Barbara Walters interview and/or charge for picking up a prostitute (witness: Lindsey Lohan, Britney Spears and Hugh Grant). At least it seems so to divorce attorneys like me who, I candidly admit, watch Entertainment Tonight and glance at the headlines in the tabloids – cringing while “lawyers” give divorcing celebrities and their fans legal advice on air and in print. Most of them look and sound reputable. They wear black suits and glasses. They are well groomed. They reference “statutes” and “codes” and “court procedure” in monologues purportedly telling those celebrities what to do, and those fans all they need to know about “the law.”
Speculation over the state of Tiger Woods’s relationship with wife Elin Nordegren is no different. Search “Tiger Woods and divorce” online, and you will find a storm of articles purportedly telling Woods how to preserve his marriage or end it with money left in his pocket and a reasonable amount of parenting time. You might read these for entertainment value (as I said, I do). The problem is, their advice is not all you need to know about the law – it is devoid of factual context and, worse still, often laden with myths.
Myth 1: If it hadn’t happened . . . .
The news has been swamped lately with stories about Woods’s secret life, and it seems that new mistresses emerge every day. According to the Herald Sun, Woods deserted a Masters gala dinner at the Crown Towers Hotel during his Melbourne visit last month to meet party girl Rachel Uchitel, while his mother dined with Premier John Brumby. Uchitel is but one of the alleged mistresses. A voicemail circulating online from LA cocktail waitress Jaimee Grubb’s cell phone is purportedly of Woods pleading with her to “take your name off your phone [because] my wife went through my phone and may be calling you.” These are but a few examples.
Celebrity lawyers point to these transgressions as “the basis” for a divorce. Talking about them at length makes for great television, but it is misleading. In most states, there is no need to prove a “basis” for divorce, other than that the marriage is irretrievably broken. That is, one spouse need not prove the other spouse cheated or is otherwise at fault for the marriage’s breakdown. Divorce in the United States is almost exclusively no-fault, and in those few states that consider “fault” as a basis for divorce, fault is more a formality than the be-all-end-all of the case.
Parties are often confused about the part fault plays in a divorce. Each state has different rules, and you should consult a lawyer in your state for the rules specific to your case. In general, however, fault is a mere formality for obtaining a divorce. In Michigan, where I practice, for example, the party filing for divorce must only allege that there has been a breakdown in the marriage relationship to the extent the objects of matrimony have been destroyed and there remains no reasonable likelihood of reconciliation. Period. Nothing more. In fact, most judges will not even let the parties testify about who was “more at fault” for this breakdown to grant the divorce.
This is not to say that fault is completely irrelevant. Most states will consider fault when dividing property and ordering child custody. In Michigan, for example, fault is relevant if the fault is related to marital property (e.g., one spouse secretly incurred debt to fuel a gambling addiction). Fault is also relevant if it reflects on parenting (e.g., one spouse deserted the children for a lover).
Myth 2: Staying together is better for the children.
According to People magazine, Nordegren plans to stay married to Woods for the sake of the couple’s children, Sam, age 2, and Charlie, age 10 months. “She’s a child of divorce and that’s not something she’s likely going to want to do” to them, a friend told the magazine. She reportedly does not want to divorce because she does not want the children to be the product of a divorced family. Nordegren herself is from a divorced family, as her parents separated when she was 6 years old.
But is it always better to stay together? No. Even anti-divorce advocates like Archibald D. Hart, author of Helping Children Survive Divorce, admit that, in certain circumstances, divorce is better for children. If you are in a domestic violence relationship, for example, separating from your spouse is better for you and your children. Peter G. Jaffe, joint-author of Child Custody & Domestic Violence, reports that children who witness abuse are hampered in their social and school development, internalize anger, suffer anxiety, depression and insomnia, and use aggressive, unpopular strategies in interpersonal problem solving at significantly higher rates than their peers whose parents have divorced.
You should consult the counseling resources in your area to learn what assistance is available to you. If you are a victim of domestic violence, you should seek refuge immediately. If you are religious, you might consider speaking to your worship leader. Know that the ultimate decision to divorce is yours, but divorce does not necessarily wreak havoc on your children. It is possible for you and your children to live happily after divorce.
Myth 3: You better say something!
Woods humbly apologized for his transgressions on his website. Although he did not admit specific details or respond to specific allegations, he admitted that he let his family down. “I have not been true to my values and the behavior my family deserves. I have let my family down and I regret those transgressions with all of my heart,” he wrote.
But is it always better to say something? Particularly when, like Woods, spouses face mounting proof and/or wild accusations of an affair, the temptation to speak up is great. Making matters worse, options are everywhere – you can update your Facebook, send an e-mail, type a text, leave a voice mail, write a letter, post a video to YouTube, and so forth.
The problem is, what you say can come back to haunt you. The tossed-about phrase with non-lawyers is “It’s hearsay; it can’t come in.” You should consult with a lawyer in your state to learn whether, if at all, that is true. Generally, your statements can be admissible in a legal proceeding against you as substantive evidence (they are called “admissions”) or as impeachment (to hamper your credibility in court). You do not want a half-joking/off-hand remark on Facebook about hating to clean up after your children to jeopardize your chances for winning custody. The best practice is to not say or write anything at all, unless it is a sincere apology and as your lawyer directs.
Myth 4: He’s fine; he has a prenup.
US Weekly has reported that Woods and Nordegren have a prenuptial agreement worth $300 million, which would make their divorce the most expensive in celebrity history, followed by Michal Jordan’s divorce from Juanita Jordan ($150 million) and Greg Norman’s from Laura Andrassy ($128 million). They have apparently also considered renegotiating their agreement since Woods’s mistresses surfaced.
Is it true the prenuptial agreement will prevail if the couple does divorce? Not necessarily.
Prenuptial agreements and postnuptial agreements have been authorized in most states for quite some time. Once seen as an inducement to divorce, and thus a detriment to marriage, now most states treat them as a strength for marriage. As the Michigan Supreme Court explained, the agreements “allow couples the opportunity to ensure predictability, plan their future with more security, and, most importantly, decide their own destiny.” They are contractual, but they are not automatically enforced as written as most contracts are.
You should consult a lawyer in your state to learn the rules applicable to your case, but in some states a prenuptial agreement is unenforceable if (a) it was obtained through fraud, duress, mistake or misrepresentation, or though non-disclosure of a material fact; (b) it was unconscionable when the parties executed it; or (c) the facts and circumstances since they executed it have so changed that its enforcement would be unfair and unreasonable. The first two may be obvious, but for even lawyers the third is not. Essentially, the court can give a “second look” at the parties’ current situation and decide not to enforce the prenuptial agreement. This would be likely, for example, if one spouse contracted cancer and has extraordinary medical bills that neither spouse contemplated at the time of executing the agreement.
Nor are postnuptial agreements always enforced. Postnuptial agreements have the same general purposes as prenuptial agreements, but the parties make them after they are married. Those made when the parties intend to settle their divorce are valid and, in fact, are a favored way to resolve disputes. They are subject to general contract principles and are enforced absent fraud, duress or mutual mistake. Those made when the parties intend to stay together, however, may not be enforceable. In Michigan, for example, postnuptial agreements that dictate the terms of a divorce made when the parties are not divorcing are void on their face as against public policy because they “promote divorce.” See, e.g., Wright v Wright, 279 Mich App 291 (2008) (per curiam op).
This may seem inherently at odds with the treatment for prenuptial agreements, and many lawyers agree. Nevertheless, that is the state of the law. If you have or are considering a prenuptial agreement or a postnuptial agreement, you should consult a lawyer to learn more about the law in your state.
Amid all of those online articles giving Tiger Woods advice, I will add this: he should, too, because what those celebrity lawyers tell you is not necessarily true.
Jennifer M. Paine
Attorney
at Law
Cordell & Cordell, P.C.
DET Office
