Many millions tune in to watch Terrence Howard play a music mogul on Empire. Most of those viewers do not know that his personal life has been a real mess. Having already divorced his third wife, Howard this week scored a major legal victory with regard to the divorce from his second wife, and the basis for the victory is worth some discussion.
Howard and his second wife, like many divorcing spouses, reached a settlement agreement that the trial court adopted and incorporated into the decree. The settlement agreement addressed how the parties would divide all of the marital assets and what spousal support Howard would have to pay. Apparently one of the issues that really benefited the former wife involved her share of his future earnings from some of his acting work, including Empire.
The agreement was signed in 2012; two years later, Howard moved to set aside the settlement agreement for duress. Specifically, Howard claimed that his former spouse threatened to expose some very unseemly aspects of his private life – including phone sex recordings with other women and videos of him dancing naked in the bathroom – if he did not agree to her terms on the financial settlement. The former spouse did not offer any evidence to rebut the allegations of duress. Given this, the trial court set aside the settlement agreement and ordered the parties to negotiate new terms.
The agreement shocked many in the legal community. First, it is unusual to wait such a long time to set aside an agreement based on duress. Second, Howard clearly knew of the extortion attempt prior to signing, so why did he not have a confidential hearing before the judge at that time to protect himself before the issuance of the final decree? Third, in our social media age, how would one or two embarrassing tapes or videos qualify as duress?
We can answer some of these questions. As to time, while odd to wait so long, a judgment procured by duress may be subject to being set aside because it voids the voluntariness of the judgment. As to the substance of duress, we know that the release of the tapes at the time could have harmed Howard’s acting career and even, ironically, derailed his role in Empire that would pay the former spouse so handsomely. So, while it may seem short of the level of involuntary coercion that goes with duress, it does qualify – but for the threats, Howard would not have entered the agreement.
This issue also raises a question about legal tactics. Lawyers in high asset divorce often find unsavory details about the other party that if made public could cause real harm. When does a promise or threat of disclosure rise to the level of foul play or even criminal conduct? That question is more complicated than we could discuss in this space, but spouses and lawyers have been charged with extortion when the threatened harm was a criminal act and the payout sought was extreme. Some of you may recall that David Letterman was the victim of an extortion attempt related to his having an affair with a staff member. Letterman actually helped the police make a case of extortion by wearing a wire and the police prosecuted the extortionist. Doing something similar in a divorce settlement negotiation does not make it less illegal.
In Missouri, separation agreements may be set aside on the basis of fraud or duress. However, Missouri puts a limit of one year on the time within which to raise the claim. So, Howard would have been out of luck in Missouri had he waited the two years. Missouri takes the view that someone who was the victim of fraud or duress must come forward quickly (the only exception would be if the fraud was not known at the time of the agreement).
If you have questions about separation agreements and duress, contact us – we can help.