"Bad Boy" Clauses

By Desa Philadelphia

PRODUCT Clauses in, or amendments to, marital agreements that guarantee a specific financial payment if one spouse's infidelity leads to divorce

HOW IT STARTED As a response to no-fault divorce laws; wronged spouses wanted compensation for their pain

JUDGMENT CALL Iffy; the spouse may renege and fight it

Despite what you may have read in the tabloids, a representative for Michael Douglas and Catherine Zeta-Jones insists the Hollywood newlyweds do not have an agreement that requires him to pay her $5 million if he is unfaithful. Nevertheless, lawyers say, such "bad boy" clauses in prenuptial agreements are becoming more popular for couples who think they can put a dollar value on infidelity. Florida courts are currently examining the legality of an agreement signed two years ago by Richard Briggs Bailey, the former chairman of a mutual-funds company, promising his wife Nanette Sexton Bailey $20,000 a month in alimony should he cheat. His now estranged wife is using an unusual method to prove the infidelity: she had the sheets she believed her husband had soiled with another woman tested for DNA.

In another Florida case, restaurateur Dennis Max, following one extramarital fling, signed an agreement in which he promised that if he strayed again and caused a breakup, his wife Patti would get $50,000 for every year they had been together, plus all their property. His wife claims he later had a fling with a prostitute, and that he owes her $5 million. Joel Weissman, the attorney who represents both Florida wives, argues that such clauses are a justifiable way to make spouses pay for violating their marriage vows. "Why not put in a provision that says if I am emotionally distraught that you have done this to me, you have to give me something?" he asks. "It's just like any other contract."

--By Desa Philadelphia