By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C.

Note: This is the second part of a two-part series. Click here to read part 1.

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. 

Read on for two more myths about the Tiger Woods saga.

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 is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.