Can Tiger Renegotiate His Pre-Nup?!?

 I would have thought thatthe answer would be clearly no, but I admit that I am not sufficiently on topof developments in family law and marital agreements to feel at all confidentof 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 renegotiationis 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 thecouple’s agreement vary widely.  While AC reports that the two enteredinto a pre-nuptial agreement before their 2004 marriage that provides for a $300million payment to Elin Nordegren in case of a divorce, HG reports that theprenup provides that Elin would be entitled only to $20 million after ten yearsof marriage and to an up-front payment of $5 million. ABC concurs on the $20million 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 partiesare trying to provide for some sort of consideration going from Elin to Tigerto justify the modification of an existing agreement.  That would consist,according to HG of “a behavioral component”: Elin must play the roleof “dutiful wife,” by showing up for social events and by signing aconfidentiality agreement (which may or may not be related to the role ofdutiful wife).  I have a hard time seeing this promise (if that is indeedthe deal) as constituting some new consideration in the marital context. In any case, it seems hopelessly vague.  Are they going to negotiate howoften Elin must be seen in public with Tiger and how fawningly affectionate ornordically 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 whatjurisdiction governs the pre-nup or would govern the amended pre-nup, but the Restatement’s provisions on modification of an executorycontract could be relevant here:

89.MODIFICATION OF EXECUTORY CONTRACT

A promisemodifying a duty under a contract not fully performed on either side is binding 
 (a) if themodification is fair and equitable in view of circumstances not anticipated bythe parties when the contract was made; or
 (b) to theextent provided by statute; or
 (c) to theextent that justice requires enforcement in view of material change of positionin reliance on the promise.

Subsection (a) could not be applicableas 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), butthere the public policies that have long led courts to refuse toenforce marital promises would cut against enforcement. 

So, I welcome any input from readersmore learned than the author in this area of the law. . . .

[Jeremy Telman]