Every once in a while I, like most people I know, enjoy listening to the talking heads. Not David Byrne and Company, but rather the pundits, espousing upon the topic Du Jour. This week that topic is Tiger Woods. The pundits I have listened to have uniformly come to the conclusion that Tiger’s prenuptial agreement (premarital agreement here in California) would no longer be enforceable because of his alleged infidelity.
Listening to the pundits on this issue was troublesome to me. Part of my practice includes the drafting of premarital agreements and I do not include “fidelity clauses” in the agreements I draft. Nor has any other lawyer involved in the negotiations requested that I include such a clause. And with very good reason. Here in California, premarital agreements are generally binding if they are freely entered and not against public policy. Before we get to public policy, let’s make sure you understand the basics.
A “premarital” or “ante nuptial” agreement is a contract executed between prospective spouses in contemplation of marriage. The purpose of the agreement is to fix marital property rights and financial responsibilities upon consummation of the marriage. While some people would argue that such an agreement is a bad thing for a marriage, these agreements are typically intended to foster or perpetuate conditions, which will help preserve a forthcoming marriage.
California is a “no fault” divorce state. Basically, if the parties decide they do not want to remain married any longer, they do not have to. Other states still require “grounds” for divorce. One such ground is infidelity. Remember before when I told you what the purpose of the agreement was? The agreement is based upon the principle that it is easier and beneficial to fix property rights before the marriage.
Having a premarital agreement, which is invalidated or otherwise penalizes a party based upon infidelity could arguably be viewed by the Courts here in California as being against public policy. In divorce cases here in California, issues of fidelity are generally irrelevant to property and support issues. Thus, by including a “fidelity clause,” you could actually be increasing the chances that a Court will invalidate your agreement.
For questions about premarital agreements and for your other family law needs, please contact the Law Offices of Richard A. Marcus at 661-257-8877.