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South Florida Family Law Attorney: Hefty 'Infidelity Clause' Penalties Not Uncommon; Proving 'Affairs' a Challenge

Tiger Woods is attempting to win back ex-wife Elin Nordegren with a $200 million prenuptial agreement, according to news reports. She reportedly countered, demanding an infidelity clause with a $350 million penalty should he stray. Though Woods had sought reconciliation in March 2010 - months after news broke of his numerous extramarital affairs - this time he appears serious, at least according to news reports.

Just like prenuptial agreements, infidelity clauses are not uncommon. But they're not routine, either. Sometimes, a breach would set into effect, for example, a doubling of any negotiated divorce settlement. Every clause is different.

Yet, this news raises several questions among South Florida divorce lawyers and family law attorneys

First and foremost, infidelity clauses are enforceable in Florida courts. So if Woods is serious about agreeing to Nordegren's terms and being prepared to sign the agreement - as news reports state he is, any transgression could lead to a hefty payout. Yet, about that transgression...

Define infidelity. Is a visit to a gentlemen's club or strip bar a straying too far? Is kissing another women a betrayal? Is oral sex? Or would intercourse be the only action to cross the line? Nothing can be left open to interpretation. The clause or agreement would need to be very clear in its definition of infidelity.

Finally, Nordegren would need a deep level of trust - and proof. After the very public breakdown and divorce the couple endured more than three years ago, it would be understandable if Nordegren didn't take Woods' word on face value. Yet, at a certain point, she must trust him - and assume that a $350 million agreement is representative of his sincerity.

For his part, would the clause be a modern day "sword of Damocles" that would make him question his own intentions in the face of having so much to lose? Or would such an agreement help keep him faithful?

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