CALIFORNIA: Elin Woods to file divorce in community property west coast state of California?

Tiger Woods Full Throttle hit a speed bump today as reports have mushroomed that Elin Nordegren has hired a high powered divorce lawyer, removed her wedding ring, and has moved into a separate residence from the storied golfer.
Reports are that she plans to file for divorce after the Christmas Holidays, not in Florida which is their main domicile and an equitable distribution state, but in California which is a community property state, since she wants to get 50% of his billion dollar empire.
Whoa! Hold up!
If Elin and Tiger have a prenuptial agreement, it does not matter if she files for divorce in Florida, Wyoming, Sweden or California or Mars for that matter. Certainly, in the 3 U.S. states, prenuptial agreements will usually be enforced and adultery has nothing to do with it. The general rule in divorce, specifically with prenups, is, a contract is a contract is a contract. An agreement is an agreement is an agreement. Of course, the prenup could have had a “cheat clause” which basically calls for a re-negotiation if either party cheats. (Michael Douglas and Catherine Zeta Jones have such a clause in their prenup, allegedly.)
It is doubtful Tiger and Elin had such a clause because they are much younger and were probably less sophisticated than the Douglasses at the time they married; and Tiger had not yet shown what he was capable of as far as his voracious sexual appetite. So, ostensibly, it would have been the last thing on Elin’s mind to have a cheat clause in the prenup. She was in her early twenties when she met and married the golfer and she probably naively thought that she was enough woman to satisfy him for the rest of her life. And at the time, he probably thought so too. So she probably didn’t get a cheat clause. Obviously, she should have.
Be that as it may, so long as there is a prenup that is properly executed, notarized and acknowledged and witnessed, there is no way that Elin will be able to set that aside in any court of law. If she does, Tiger will vacate such an order on appeal. Contract law if pretty clear and straight forward. Prenups are glorified contracts. Elin can file for divorce on Mars if she wants, but she will not be able to set this agreement aside as long as it was done properly in the first place. Ask Donald Trump about airtight prenups. He’ll tell you stories!
There is a lot of talk about this cute yellow beach house that Elin bought a few months back which was to be the summer residence of the Woods family. Everyone is speculating that Elin will now move to Sweden with the kids and pretty much take the house. Well, folks need to slow down. Just because Elin bought the house herself and it’s in her birth country, doesn’t make it her house. She is subject to the jurisdiction of the American courts and in this country – certainly in most states in this country – anything bought or accrued or acquired during “marriage” is marital property and belongs to both spouses – unless it was given by a third party as a gift or inheritance to only one spouse. No house that Elin bought in Sweden was given to her as a gift or inheritance. It doesn’t seem that she exactly came from money whereby she would receive such a gift from a family member. No. She was just a nanny when she fell into the clutches of Mr. Woods, the quintessential money bags. More than likely, her family is looking to Elin to fatten their bank accounts. Therefore, the money she used to purchase that house was likely money that came directly or indirectly from her husband’s income and assets and labor. It was purchased during marriage? Yes it was? Well, it is marital property and she can’t just keep it. It is a distributable asset and both she and Tiger will get an accounting of all marital assets (assuming no prenup) and then a distribution will be made pursuant to the state law in which they dissolve their marriage. If in an equitable distribution state, she gets what’s fair. If in a community property state, well, hey, she gets a bit more than that. However, if there is a prenup and the house is not accounted for in the prenup, this is pretty much Tiger’s house even if Elin made the purchase (it’s his money!!!). And Elin will not be able to keep it unless he hands it over to her.
People forget, it seems, that even assuming Tiger Woods is worth a cool billion at this time, a huge chunk of that was made prior to his marriage to Elin. They have only been married about 5 years. But how long has he been playing golf and winning tournaments? Anything he made prior to his 2004 wedding is separate property and is not on the table.
Without an order of custody – even if only an order pendente lite – Elin can’t just “take the kids and move to Sweden.” That’s just ridiculous and is tantamount to kidnapping. The children are American citizens and this is their home country. Florida is likely their home state. Elin can’t even technically just move the kids to California. Florida has home state jurisdiction here and if Tiger objects, she may be forced to leave the children where they are accustomed, and where their “home state” is. ELIN NEEDS TIGER’S PERMISSION before she can just move his kids anywhere she pleases – even pendente lite. He can have radius clauses put into any stipulation they hash out while the case is pending. His parental rights are not arrested just because he can’t keep his pants zipped, you know. One has nothing to do with the other.
As a matter of fact, more relevant to the children’s custody might be which parent is more prone to “violence.” Tiger has denied that his wife hit him. But many people believe he was covering for her. If this thing blows up even more, he can just recant and say he was doing it out of privacy concerns. And remember, he wasn’t under oath when he said how courageous she is, and how she didn’t beat him with a golf club. So if he recants there are no legal repercussions. Elin probably never laid a hand on him in her life, but if she did, even once, that could mitigate against her getting custody of those kids. It may be wise of Tiger to get legal counsel ASAP. If his wife is over the marriage, it may matter who files first. If he wants to keep this thing in Florida, he may have to quickly file the case and be the plaintiff. There are some tactical advantages to being the plaintiff all things considered.
What grounds will they use for divorce?  The awesome thing about both Florida and California, and even Wyoming where they have a winter chalet, is, fault has nothing to do with whether they can get out of the marriage or not. Only New York forces spouses to prove grounds and if New York was their state of domicile, Tiger could have some serious problems because Elin could use his adultery as leverage to obtain more cash – and also to embarrass him with a grounds trial whose play by play would be on TV on a daily basis adding to the circus that has befallen the golf aficionado. Oh, sure, she can still allege adultery as her basis or grounds in both Florida and California but only if she wants to get her pound of flesh by embarrassing him. If not, she can just go with “irreconcilable differences” and call it a day.
Even assuming they had a prenup, that has nothing to do with the child support he has to pay her if she gets custody (and again, it is not a foregone conclusion that she will.) Florida may be like New York in this sense and he would have to pay pursuant to a child support statute to a certain dollar figure. In New York, the statute applies to the first $80,000 of gross income.  Except of course in high net worth cases. Then the judge has huge discretion. The objective with child support is to keep the kids at the standard of living they had when the parents were married. So even if he has to pay Elin $20 million pursuant to the prenup, he may find that he has to pay an additional $5 million per year for those kids till they turn 21. Unless, of course, he wins custody. Then he would not have to pay her except for those times when she had visitation. Something tells me, though, that Tiger would not fight custody. Certainly not physical custody. A guy like him seem to want to be as free as possible and having two little kids to contend with after his golf tournaments will really get in the way of his games. So he probably will let Elin have the kids. And so yes, he will be paying through the nose till they turn 21. And by the way, whatever he pays for child support, Elin will, as the custodial parent, have the right to spend it whichever way she wants. So technically, all that extra money is really for her and technically not for the kids.
Well, other than the fact that he seems to have wrecked his marriage, not much. In New York, adultery is still a crime on the books as penal law 255.17(?) but no one has been prosecuted on this law in decades. Elin could sue his mistresses for tortious interference with her marital contract. But why bother? Their pockets are not that deep and who needs it? Elin sure doesn’t. As for Tiger, if he does not have a prenup with Elin, then the consequence might be that he pays her more. Because her lawyers will argue that he “dissipated” marital assets and so they will argue that she should get the value of what he gave away – and that would factor in that alleged $3 million he paid to Rachel Uchitel (allegedly!) for her to keep her big mouth shut.
Speaking of Sweden, the divorce rate in Sweden is probably the highest in the world. Why? Check out this post for insight: Swedish divorce rate is through the roof!