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"Infidelity Clauses" and Celebrity Prenuptial Agreements

March 15, 2013

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A premarital agreement, more commonly known as a "prenup," is a contract entered into by soon-to-be spouses prior to marriage. Celebrities commonly enter premarital agreements in order to protect any wealth they may acquire during marriage. Where one spouse has the potential to make millions of dollars per year, as is often the case in Del Mar, he or she is incentivized to enter into a contract with his or her spouse clarifying that any money earned during marriage will remain his or her separate property upon divorce. In contrast, under California's default community property laws, each spouse is entitled to one-half of all earnings by his or her spouse during marriage. One of the most highly debated issues in celebrity premarital agreement negotiations and litigation is an infidelity clause.

Learn more about quasi-community property

As divorce attorneys know, all premarital agreements are different, and thus all infidelity clauses are different. However, an infidelity clause generally imposes a financial penalty on one or both spouses if he or she commits emotional or sexual infidelity. Financial penalties may include mandatory cash payouts, increased spousal support, or an unequal division of the marital estate. In order to protect themselves in case of divorce, celebrities couples such as Charlie Sheen & Denise Richards, Sandra Bullock & Jesse James, and Catherine-Zeta Jones & Michael Douglas are rumored to have had infidelity clauses in their premarital agreements. Recently, Elin Nordegren was rumored to have demanded a substantial infidelity clause in a premarital agreement as a condition of reconciling with Tiger Woods.

Ironically, despite the buzz about celebrity infidelity clauses in premarital agreements, infidelity clauses are void in Del Mar and across California. In Diosdado v. Diosdado, the California divorce court found in 2002 that a penalty for infidelity is in direct violation of public policy underlying "no-fault" divorce and thus is unenforceable. Thus far, Diosdado has been continually upheld by all published cases to follow it. The policy behind California's "no-fault" divorce is that a party should not be punished financially for any misconduct during marriage. In contrast, certain circumstances allow some states' divorce courts to look at fault in dissolving marriage, determining support, and dividing property. It would seem to follow that these states would uphold an infidelity clause in a premarital agreement, should divorce become an issue.

Read more about jurisdiction and divorce in California

Considering that thousands of celebrities call cities in California home, it is interesting that so many celebrities are discussing unenforceable infidelity clauses. One explanation may be that only celebrities residing and divorcing outside of California are negotiating infidelity clauses. Gossip magazines also debate whether or not an expensive price tag actually deters celebrities from straying outside of their marriages.

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Vanessa Bryant's Strategic Divorce Move

Superstar basketball player Kobe Bryant is splitting with his wife Vanessa. On December 1, 2011, Vanessa filed a divorce petition in the Superior Court of California in the County of Orange. Like many other rich and famous celebrities, Kobe and Vanessa Bryant did NOT sign a premarital agreement. The Bryants have released a statement revealing that the couple has settled all relevant issues privately including: custody, visitation, property, and support. A judgment will be entered in 2012.

The couple has two young children Natalia, 8, and Giana, 5. Both Kobe and Vanessa are asking for joint custody of their daughters. According to the filing, the couple will share both legal and physical custody. It seems like Kobe and Vanessa will not litigate any issues in their divorce.

Ironically, the couple celebrated their 10-year wedding anniversary on April 18, 2011. In 2004, Kobe was accused of sexually assaulting a woman in Colorado. Throughout the entire investigation and trial, Vanessa stood by his side and supported the position that the alleged sexual assault was consensual. Vanessa admitted that Kobe made a mistake by committing adultery but refused to acknowledge any more of the woman's claims. Rumors have surfaced that Vanessa saw divorce lawyers and almost served Kobe with divorce papers in 2004. A source close to the couple commented: "Vanessa almost threw in the towel four years ago. Kobe always had a slew of girlfriends, and the cheating was almost blatant."

Despite Kobe's public (alleged) infidelity that continued into the years following 2004, Vanessa stayed in her marriage before suddenly filing for divorce in 2011. Vanessa was likely counseled in 2004 regarding the likely outcomes of a potential divorce case and her options. Under California law, a marriage of 10 years or more is a presumptively a long-term marriage. Having a long-term marriage entitled Vanessa to many advantages in a divorce proceeding. California Family Code section 4320 lists the factors a court may consider in awarding spousal support. Under section 4320(l) the goal of the court shall be that the supported party shall be self-supporting within a reasonable period of time EXCEPT in the case of a long-term marriage. If the marriage is not long-term, a "reasonable period of time" is generally one-half the length of the marriage. Therefore, if Vanessa had filed for divorce in 2004 she would likely be awarded spousal support for around 3 years. Now that the 10-year mark has passed, Vanessa may be entitled to permanent spousal support.

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Schwarzenegger Case Illustrates Issues of Marital Property, Child Custody, Alimony in San Diego Divorces

FOX News and other media outlets continue to report that the divorce of Arnold Schwarzenegger and Maria Shriver could be among the most expensive celebrity splits on record.

Some estimates say Shriver could get more than the $100 million Tiger Wood's ex-wife Elin Nordegren received.
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Division of marital property in a San Diego divorce, or a divorce elsewhere in California, is supposed to be equal under the state's no-fault divorce law. In practice, one party to a divorce can end up with significantly more than half the assets for a number of reasons.

What constitutes community property is one potential area of contention. Property owned before marriage and inheritance to one spouse are both examples of separate property. Valuating community property is another area where a San Diego divorce lawyer will focus attention. For instance, is the marital home valued at current market value? After the economic downturn, a couple's primary residence is often a liability -- with more owed on an upside down mortgage than the property could bring at sale.

With Schwarzenegger and Shriver, there are more complications -- and more assets -- than in many marriages -- even celebrity marriages. And, with allegations about Arnold's infidelity continuing to surface, he may find an unsympathetic judge on the bench. And, with four children and the majority of the earning power, several media outlets have reported child support and alimony could easily top $100,000 a month.

Typical couples should understand the tax implications of alimony and child support as there may be opportunities to move money in one direction or the other. Alimony is treated as taxable income for the receiver and as a tax deduction for the payer. Child support is tax free for the recipient but not deductible for the payer. One caveat to keep in mind: Courts are much better about helping you collect back child support than they are about assisting with the collections of back spousal support.

In the case of Schwarzenegger and Shriver, their marriage will be seen as long-term under California law, which means she may collect alimony for an indefinite period of time. A short-term marriage is defined as one lasting under 10 years, which is in part why it's not uncommon to see celebrity couples split near the 10-year mark.

Other factors worth considering in this split is Arnold's future income from motion pictures -- particularly sequels to movies made during the marriage. The New York Post reported last year that Diandra Douglas -- the ex-wife of Michael Douglas -- moved to collect on his payday for the making of "Wall Street 2," claiming her divorce agreement entitled her to a portion of the proceeds.

For most couples, similar concerns often involve retirement accounts or the earning power of an advanced degree -- such as a medical degree or law degree -- earned during the marriage.

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