Dec3 |
 |
Tiger Woods’ prenup, gay marriage and the law
I was going to avoid commenting on the Tiger Woods scandal. But this story about Tiger’s prenup, combined with yesterday’s rejection of gay marriage in New York, made me reconsider. Seriously. Get a load of the prenup:
So: Tiger cheated on his wife, probably multiple times. He’s paying her millions of dollars to stay with him. They’re in legal negotiations over financial terms of their continued marriage. If she stays with him another couple of years, she’ll be “vested” — you don’t usually hear that term outside of 401(k) hearings — and receive the full amount of a settlement. I’ll grant you, this is an extreme case. What Woods and his wife call “marriage” looks more like a cold and calculated contractual business partnership from the outside. In the eyes of the law, that’s essentially what marriage is: A contract between two people that gives them certain rights as a couple and responsibilities to the other. There’s nothing mystical or sacred about it from the state’s viewpoint. But the extremity of Tiger’s case helps clarify, a bit, what the gay marriage fight is all about: The right of two people of the same sex to make a contract with each other. Legally, it’s not about “sanctity” or “sacredness” or any of that stuff because the law doesn’t — shouldn’t — concern itself with such things. Certainly, it appears, Tiger Woods hasn’t. Yet his contract with his wife receives the respect of the law. It’s all a bit bewildering. |
|
|
PW BLOGS: PhillyNow | PW Style | Make Major Moves | The Trouble with Spikol
Nice article.
I’ve been wondering about if they had a prenup. Can we trust this Daily Beast to speak the truth?
I’ve also been wondering what it was going to cost him to keep his wife, besides his balls.
Whatever happened to the word “LOVE”? It doesn’t seem to be mentioned.
If it’s only about a contract, and what is seen in the state’s eyes then I don’t understand why these state’s just don’t go ahead and legalize gay marriages.
Shame on NY, but couples can continue coming to CT to wed, where we just celebrated the one year anniversary of our marriage equality law.
Onward to equality,
Joe Mustich, Justice of the Peace,
Washington, Connecticut, USA.
Shannon: I think for the people who enter a relationship, love is usually an overriding factor in marriage. And I’d hate for it to be otherwise But the state doesn’t require “love” tests or fertility tests or anything like that — and in fact, love doesn’t really have to be at all present for a marriage between heterosexuals to be legally valid. From a legal standpoint, marriage is unconcerned with love. It’s a contractual relationship. Which gay folks are, generally, not allowed to enter with each other.
Is there anything in that prenup that says if Tiger cheats it negates all other contractual obligations? I think in this case since Tiger screwed up if Elin wants out she shouldn’t be held to their “contract” and he should have to pay whatever is standard spousal/child support and all other regular Florida laws regarding divorce should apply. She’d still come out ahead. Yes, her heart would be broken, her family would no longer be intact, but she wouldn’t be married to a man that allegedly cheated with three women (that we know of so far) and she will be much better off financially than she was when they married.
Goldigging 101, Lesson 1: You shouldn’t bitch if you marry rich.
This is a GREAT take. Truly Jim Rome worthy. Grats!
Am I reading that Mr. Woods is treating his wife like a prize prospect, offering — contract extensions, et. al.? What, I wonder, are the incentive clauses? The mind boggles.
Part 2:
As for “nothing mystical or sacred about it from the state’s viewpoint,” I have to protest a trifle: where the State is the People, and where the People see something mystical or sacred, there may emerge some conflict. And I still think that that is what we are seeing being worked out regarding “gay” “marriage.” Those who wish not for “gay unions” with equal legal standing before the state law, but “gay marriages,” should probably seek to override that nagging feeling of sacredness and/or mysticism that’s been irrationally (heh) attached to families for the last 100 millenia or so. Or else get a state that is not accountable to the poeple of whom it is composed.
THEY SHOULD SEPERATE FOR AT LEAST A YEAR, SO THEY CAN BOTH COOLECT THERE THOUGHTS AND FEELINGS AGAIN.PUBLIC WILL RESPECT THAT ALOT MORE …
Joel’s analysis of “marriage” as “A contract between two people that gives them certain rights as a couple and responsibilities to the other” is ridiculously superficial. Buying a used car or signing up for kickboxing lessons is a “contract between two people that gives them certain rights . . . and responsibilities to the other.” Our millennia of marriage traditions are not something that can be absurdly reduced down to a sex-neutral personal services contract.
Tiger’s antenuptial agreement does not change that. It merely is a contact intended to circumvent the laws which normally commingle the property (either in full or postnuptial, depending on the jurisdiction) of the man and the woman bonded together in marriage.
Moreover, the “contract” analogy utterly fails because Mrs. Woods does not have any right at law to obtain any damages for Tiger’s breach of the “contract” through serial adultery. In a real contractual setting, a party to an exclusive personal services contract would have the right to recover for injuries caused by the breaching party’s provision of “service” to others. (e.g. General Motors could obtain a money judgment from a parts supplier who breached an exclusive services agreement). All Mrs. Woods could obtain, absent some side agreement to the contrary, would be release from the marriage bond and a distribution of her share of the marital assets.
Moreover, even if we were to adopt Joel’s flawed marriage-is-a-secular-service-contract analogy, it hardly puts it beyond the reach of the state to regulate. States have hundreds of thousands of pages of statutes and regulations aimed at the regulation of contracts. Just as two people cannot agree to sell a brand new passenger automobile without a catalytic converter or agree to waive all products liability claims or agree to indentured servitude or agree to literally millions of other possible transactions, the state has the inherent power to limit, condition or even ban forms of agreements “between two people that gives them certain rights . . . and responsibilities to the other.
The misguided liberals who want to delimit marriage into functional oblivion and libertarian chaos would be better served by sticking to the empty rationale of Lawrence v. Texas than to adopt some sort of secular “contract” theory.
Speedzzter: Your analysis is pretty interesting, except for one kind of important flaw: From a legal standpoint, marriage really IS contractual in nature. No analogy required.
I can pluck from plenty of sources for this reading of things, but I’ll take this one from Cornell Law:
In the English common law tradition, from which our legal doctrines and concepts have developed, a marriage was a contract based upon a voluntary private agreement by a man and a woman to become husband and wife. … Today the underlying concept that marriage is a legal contract still remains but due to changes in society the legal obligations are not the same.
http://topics.law.cornell.edu/wex/Marriage
Now obviously, within the marriage, a church or a community at large a marriage is often — but not always — invested with something more significant than the sterility of legal language. Call it “love,” call it “sanctity,” call it whatever you want: The law doesn’t — and as I’ve already said, shouldn’t — concern itself with such things.
I’m not, in this case, arguing against the state’s purview to regulate the marriage contract. (Although I’d have no real problem if it got out of the marriage business.) But I am saying that it’s discriminatory to prohibit same-sex couples from entering into such a contract with each other.
You write:
A couple of thoughts:
• How many divorce cases have you experienced? When there’s evidence of adultery, it can make a real difference in alimony decisions by the judge. This doesn’t seem that different from what you’re saying.
• That said, your contention here seems to be that marriage is not *the exact same thing* as a personal services contract. Of course it isn’t. It’s a marriage contract. It’s different, to some extent, but that doesn’t mean it’s not a contract.
In any case, I don’t want to “delimit marriage into functional oblivion.” I want it extended to loving couples — many of whom already raise kids together — so that more people can share the rights and responsibilities available under the state’s recognition and respect.
Tiger can’t keep his putter in his pants, now his wife and half dozen women want millions for it and he’s willing to pay. I don’t get it, why keep paying when the secret is out?
If we’re going to turn this into an internet “proof-texting” contest (argumentum ad verecundiam) . . . .
“Marriage… is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those who association is founded on the distinction of sex.” –Black’s Law Dictionary, 1891 to present. (cited at http://www.heritage.org/Research/Family/MarriageDebate/WhatIsMarriage.cfm)
Although some courts have transposed the idea of “agreement” with the concept of “contract” in describing marriage, my point was that the vast majority of ordinary contract law does not apply to it. Marriage is more than a simple contract.
Most certainly, we are looking at this issue at different levels of abstraction. At the more concrete and applied levels, marriage does not function much like any other “real” contract known to man.
Moreover “Marriage is uniquely beneficial to society because it is the foundation of the family and the basic building block of society.”
“It brings significant stability and meaning to human relationships.”
“It remains the ideal for the raising of children.”
“It plays an important role in transferring culture and civilization into future generations. Marriage is not merely a private contract, but a social institution of great public concern.” , Id.
Destroying what’s left of marriage by throwing out its single most enduring, defining and important element (against the will of the majority, I might add) will hardly force anyone to “respect” homosexual conduct, whether confined within the boundaries of “loving” serial monogamy or (statistically most probably) otherwise.
While delimiting marriage may lead to a “gravy train” of government transfer payments for various freeloaders and would be used to bludgeon employers, houses of worship, private associations, and various public accomodations into providing special, mostly unearned benefits, privileges and immunities to a relatively tiny number of persons who choose to publicize their private homosexual conduct and define their public personas by it, there are two possible, mutually exclusive ultimate consequences for society as a whole:
1. It does not change the fundamental beliefs of most citizens about either the inherent nature of marriage or the moral impropriety of homosexual acts, and thus the entire “respect” justification is an empty, unjustified canard; or
2. It changes the fundamental beliefs among the majority, and thus causes marriage to cease having meaning as a concept beyond temporary domestic couplings of any number of persons choosing to “contract” in some form for “private services.”
As Justice Scalia presciently observed in his dissent to Lawrence v. Texas:
“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”
Accordingly, the idea that marriage laws can be “de-moralized” or should be subject to individual whims of personal “liberty” undercut the rational basis for any meaningful limits on “marriage” whatsoever(which seems to be your real goal).
Of course the Western notion of the social contract implies that the people give up some rights to a government or other authority in order to receive or maintain social order through the rule of law. Traditional conceptions of marriage have long fit within this rubric.
To replace “real” marriage with some ethereal concept of “loving couples” (or logically, loving groups, loving fathers and daughters, loving sons and mothers, loving brothers and sisters, loving owners and their pets, etc. ) assembling together in ad hoc alignments and thereby instantly qualifying for every social and economic program intended to encourage or subsidize the undertaking of unique familial activities within marriage discards the material differences between marriage relationships and most other forms of social order and encourages alternative arrangements. In short, it would eventually (not necessarily immediately) create disorder, confusion and, ultimately, disincentives to stabilizing society and civilizing human impulses through marriage.
When marriage ends up as being not materially different from not being married, marriage will obviously have ceased to be much of a stabilizing force. While we’re arguably almost at that point already, further delimiting of marriage would likely be the coup de grace.
As to extending “responsibilities” through marriage — what legal responsibility is solely borne by properly married persons?
Brilliant observation!
I’ll be facebooking this link and seeing if I can “follow you” with blogger…
And Speedzzter needs to STFU because there have been gay marriages in the past before Christianity wiped the map of Europe clear of any Paganism. Roman law (where our system of Democracy originates), in fact, upheld the rights of people to have various bi-sexual relationships that were protected under the law. And quoting the Heritage Foundation just lets us all know that you are one of those crazy birthers prancing around in the street with teabags on your head.
[...] made by some of his side gigs that he was only in the marriage for the façade, along with the latest leaks about his attempts to buy some more time with Elin. It appears the guy never really wanted to be [...]
#16 Jarrett: “there have been gay marriages in the past before Christianity wiped the map of Europe clear of any Paganism…”
Let Speedzzter speak his peace; if you are going to go back in history go back the whole way. Back before prehistory. You will find, objectively, that “marriage & family” are based bio-genetically. Heterosexually. That we can allow for homosexual coupling, but that from the biological perspective (which seems to be “all the rage” for basing life philosophies on these days), marriage is by definition heterosexual in nature. Homosexual unions are exceptional. Quoting Roman Law in this context is as meaningless as quoting law from the 1800’s.
Both sides have merit. As do both sides of the “nature” versus “nurture” debate. Curiously, many on both sides seem violently opposed to admitting that.
Captcha: “ing homeless”… is that only part of a phrase? ;o/