Monday, December 14, 2009
I would have thought that the answer would be clearly no, but I admit that I am not sufficiently on top of developments in family law and marital agreements to feel at all confident of my gut instinct. In any case, rumors are flying (for example at TheHollywoodGossip.com (HG), and at AssociatedContent.com (AC) and at ABC News (ABC)) that a renegotiation is in process, which suggests that some people think it is possible. Please note, that what follows is simply based on my reading of the above-mentioned reports. I make no more claims to special insight into the relationship between Tiger Woods and Elin Nordegren than I do to expertise in family law.
Accounts of the couple's agreement vary widely. While AC reports that the two entered into a pre-nuptial agreement before their 2004 marriage that provides for a $300 million payment to Elin Nordegren in case of a divorce, HG reports that the prenup provides that Elin would be entitled only to $20 million after ten years of marriage and to an up-front payment of $5 million. ABC concurs on the $20 million figure.
These reports suggest that Elin is seeking an additional $55-60 million on top of the $20 million already negotiated and that she would be entitled to the full amount -- now in the $75-80 million range -- so long as the marriage lasts a total of seven, rather than the original ten years. This strikes me as a deal in which Elin would get more for doing less.
It seems that the parties are trying to provide for some sort of consideration going from Elin to Tiger to justify the modification of an existing agreement. That would consist, according to HG of "a behavioral component": Elin must play the role of "dutiful wife," by showing up for social events and by signing a confidentiality agreement (which may or may not be related to the role of dutiful wife). I have a hard time seeing this promise (if that is indeed the deal) as constituting some new consideration in the marital context. In any case, it seems hopelessly vague. Are they going to negotiate how often Elin must be seen in public with Tiger and how fawningly affectionate or nordically respectful of him she must appear? Is Tiger in effect promising to pay his wife an extra $55-60 million to act like his wife for two years?
I don't know what jurisdiction governs the pre-nup or would govern the amended pre-nup, but the Restatement's provisions on modification of an executory contract could be relevant here:
89. MODIFICATION OF EXECUTORY CONTRACT
A promise modifying a duty under a contract not fully performed on either side is binding
(a) if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made; or
(b) to the extent provided by statute; or
(c) to the extent that justice requires enforcement in view of material change of position in reliance on the promise.
Subsection (a) could not be applicable as marital infidelity could not have been unanticipated by the parties. I suppose the nature or extent of the infidelity might be unanticipated, but isn't the purpose of a pre-nup to provide for liquidated damages in the case of a broad range of unexpected events that the parties could have anticipated but did not want to contemplate or name at the time they tied the knot?
Subsection (b) may apply, but it seems unlikely.
That leaves us with subsection (c), but there the public policies that have long led courts to refuse to enforce marital promises would cut against enforcement.
So, I welcome any input from readers more learned than the author in this area of the law. . . .