Steven Fernandez |

Divorce

The entertainment community, and Los Angeles in particular, is reeling after dozens of reports of sexual harassment involving a top industry player surfaced earlier this month. More than 30 women have come out and accused Harvey Weinstein of sexual assault and/or sexual harassment. Weinstein, the owner of one of the most powerful entertainment companies in the country, has already lost his job as a result of these accusations. It now seems as though he will lose his wife, as well. Georgina Chapman, Weinstein’s wife of nearly 10 years, reportedly intends to file for a divorce in the near future.

California is a No-Fault Divorce State

Given the seemingly endless influx of sexual assault allegations against Weinstein, there is probably a lot of evidence that could support a finding of fault for their divorce. However, Chapman does not have to prove that Weinstein is to blame for the dissolution of their marriage. California – where the couple resides – is a no fault state. In no fault states, either spouse can ask for a divorce without having to establish that the other is responsible for the split.

Each Spouse Entitled to Half of All Community Property in Divorce

Weinstein has undoubtedly caused his family a lot of pain. Chapman, who has two children with Weinstein, may want to capitalize on the sexual assault allegations against him in her divorce to maximize what she gets in the split. The pair will likely file for divorce in California – the state in which they both reside. California is a no-fault community property state. This means that each spouse is legally entitled to half of the couple’s community property. Even if one spouse cheats on another or engages in vile behavior, he/she is still legally entitled to half of the marital assets/liabilities by law.

Reports have shown, however, that Weinstein and Chapman executed a prenuptial agreement before their wedding in 2007. A prenuptial agreement can be used to circumvent California’s community property standard. A prenuptial agreement is basically a contract between the soon-to-be spouses that discusses what will happen to their property in the case of a divorce. Wealthy individuals and celebrities like Weinstein and Chapman routinely execute prenuptial agreements to protect their future interests.

Infidelity Clauses Popular in Prenuptial Agreements

The specifics of the Weinstein/Chapman prenuptial agreement have not been released. However, it is plausible that the couple included what is known as a “bad boy” (or “bad girl”) clause in the contract. A “bad boy” clause is essentially an infidelity or adultery provision that punishes one spouse for extramarital affairs. California, which is a no-fault divorce state, does not allow one spouse to financially punish another for adultery in a divorce. Partners who anticipate that there may be trouble down the road may be inclined to include a bad boy clause in a prenuptial agreement. As these clauses become more popular, one important question is raised: Are bad boy clauses legally enforceable?

In California, pretty much anything can be included in a prenuptial agreement. There are three factors that are required to make a prenuptial agreement legally valid and enforceable.

  1. Each spouse must have had complete access to the financial information of the other spouse before signing the prenuptial agreement.
  2. Each spouse must have had no less than 7 days to review the prenuptial agreement before signing.
  3. Each spouse must have been represented by a separate attorney, or waived their right to separate representation, to ensure that each of their rights was protected.

Courts will generally allow any provisions of a prenuptial agreement that do not violate California law or public policy. There is no law that prohibits a spouse from punishing another spouse for adultery. However, California courts have held that “bad boy” clauses conflict with public policy. As a result, these infidelity clauses will probably not be enforceable in California divorces.

Choice of Venue in a Divorce

This is actually why many celebrities and wealthy individuals file for divorce in states other than California. States like Texas, where celebrities including Sandra Bullock and Tony Parker have filed for divorce, are fault states. These states would be more likely to enforce bad boy or infidelity clauses in a prenuptial agreement.

The choice of the state in which a couple divorces is incredibly important. Each state has slightly different laws and will approach a divorce in slightly different ways. As the Weinstein/Chapman divorce unfolds it will be interesting to see if Chapman attempts to file in a state other than California. It is possible that the wealthy couple has sufficient ties to another state that could allow them to seek a divorce outside of California.