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If Tiger and Elin Split, How Might They Divvy Up the Goods?

By Ashby Jones

If People magazine is to be believed, something terribly unsurprising is about to happen: Elin Nordegren is about to leave Tiger Woods and start divorce proceedings. Click here for the story.

Other than the very obvious — that he’s both a superhuman golfer and a complete bonehead — we don’t have much to say about Tiger. But we can give a little insight about divorce law in Florida to get you up to speed, LBers, on how it all might play out if and when Elin buys that one-way ticket to Splitzville.

For a little help, we checked in with Ira Elegant, a lawyer in Miami who has repped the likes of Shaquille O’Neal and Alex Rodriguez in divorce proceedings.

Hi Ira. Thanks for taking the time. We read in the People article that Nordegren and her lawyers are thinking of challenging the couples’ prenuptial agreement. Is that doable? Is it common?

In my experience, yes, more frequently than not, wives will attack a premarital agreement. What do they attack? Well, they say that there were disclosure problems — that they undervalued the assets at the outset. They say things like “he said he was worthless when in fact he’s not.”

Apart from that, they may say that the deal was negotiated under duress. That they were handed the agreement two days before the wedding and told that it was a take it or leave it deal. That’s one thing that judges look at when determining the validity of a premarital agreement — how far before the wedding the deal was reached. The closer it is to the wedding date, the more one might infer it was made under duress.

Okay, and more generally, what does Florida law provide?

Florida is a no-fault state. That means you don’t need grounds to file for a divorce; you just need to show that the marriage is irretrievably broken.

So that leaves you predominantly with financial arrangements and arrangements having to do with children, namely alimony, custody, child support and visitation.

Now, child support in Florida is governed by statutes that are called guidelines. A court can vary upward or downward on the guidelines, depending on a host of factors. For instance, a series of cases have evolved in a number of states that are called “good fortune cases,” in which a child’s mother or father is a person of tremendous means. In those circumstances, a court might ask a spouse “well, how much do you really need?” Remember, child support isn’t taxed, so a ruling to give a spouse, say, $200,000 per month per child ends up being a gargantuan amount of money.

In those cases, a court might say that this is a good fortune case, and order the mother to put the bulk of the money in a trust that vests when the child turns 18. In New Jersey, those cases are called “three pony cases,” under the theory that even a wealthy child doesn’t need three ponies.

Okay, that’s child support. What about alimony?

On alimony, Florida courts traditionally look to a premarital agreement. If the agreement is upheld, then the amount of alimony is typically upheld. With a premarital agreement, on the other hand, parties can’t agree to child support or custody beforehand. Well, they can, but it’s not binding on the court.

But alimony is typically governed by an agreement, though you might reach another settlement afterward to keep the spouse from challenging the agremeent’s validity. With [Tiger and Elin], we don’t have any idea what their agreement might say. It might provide for a lump sum or periodic payments or parcels of property. We don’t know. Alimony would be tax deductible to him, though, and taxable to her.

What if a court determines that an agreement isn’t valid. How does it determine alimony then?

Well, then you’d have alimony determined under Florida law. Among the considerations would be what Elin’s needs are, what her standing of living has been, and at Tiger’s ability to pay.

Any other issues?

There are a few other issues, even if you have a valid agreement. There are often issues regarding attorneys’ fees if a party challenges the agreement.

Reaching a visitation schedule is also something that needs to get worked out, though, in my experience, sensible people can usually work that out.

And are we sure, with Tiger and Elin, that Florida law will apply?

Not necessarily. That’s a good point. If they’ve both been Florida residents, we can assume Florida law applies. But the agreement itself may have been drafted in another state and may provide that a Florida court has to apply California law.

In which case, you’d have to bone up on California law, right?

Probably not. I’d probably hire a California lawyer to help me with that.

You’re not involved in the case, are you?

Not yet!

Well, thanks for taking the time.

Happy to.

Photo: AP

Full post as published by Law Blog - WSJ.com on December 16, 2009 (boomark / email).