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Morality Clauses & Divorce: What You Need to Know

When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents.  No one wants someone else raising their children.  However, that can be a very harsh reality to face for divorced people with minor children. Previously in the most recent edition of […]

When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents.  No one wants someone else raising their children.  However, that can be a very harsh reality to face for divorced people with minor children.

Previously in the most recent edition of Network, we looked at employment contracts for executives and high visibility employees or representatives, and how a company can manage the risk of illegal or otherwise improper behavior of those key persons.  With some foresight and smart contractual drafting, the company can protect itself from bad behavior through morality clauses.

Surprisingly, this very same issue – guarding against the poor judgment of others – appears in many, many divorce cases, particularly when there are minor children and custody issues involved. These issues can have a profound impact on many people, regardless of social status, wealth, religion or any other demographic category.

Even the most amicable divorce matter can be psychologically and emotionally challenging at times.  More often than not, those challenges can become extreme when mixed with the financial pressures that divorcing couples also face.  Add to that the difficulty of navigating custody issues, and the parties’ differing perceptions of what is in the child’s best interest, and you have a powder keg waiting for ignition.  Eventually, more often than not, this issue explodes into conflict.

When negotiating a custody agreement, invariably the parties have to confront a very real issue that all divorced people with minor children hate thinking about.  At what point can your ex-spouse introduce the children to a new person the ex-spouse is dating?  At what point can that new person stay overnight in the same house as the children?

While those two issues are related, they are totally separate issues to think about for your Marital Settlement Agreement.  The introduction and the first overnight stay (one would hope) are separate events.  What recourse do you have if the ex-spouse is doing something you think is risky or ill-advised?  What if your ex-spouse takes up with the very next person that comes along without knowing much about them?  It happens far more often than one would think.

The answer is that you do have an opportunity to try and mitigate this risk when negotiating the terms of the Marital Settlement Agreement that will control the conduct of both parties going forward.  This is the only point in the divorce process where you will have an opportunity to address this.  Once the Marital Settlement Agreement is signed, this door closes.

The mechanism you use is called a morality clause (sometimes more elegantly called a paramour clause).  This is a flexible term, and you can use this mechanism to address when the first co-habitation with the children in the house would occur.

What a morality clause does in this context is to prohibit overnight romantic guests of your ex-spouse while your ex-spouse has physical custody of the children. You don’t have to care what the ex-spouse does in their free time, but you should care what the ex-spouse does when the children are present.

For example, the following is typical of language you would use in an agreement regarding overnight stays: “no party shall have overnight guests of the opposite sex to whom they are not married or related by blood or marriage while the minor children are in the home during periods of physical custody and/or parenting time.”  As a drafting point, it should be noted that the preceding provision assumes a heterosexual couple, but the language can easily be modified when same-sex parents are involved.

Often, the terms and conditions of the Marital Settlement Agreement can be incorporated into a court order in the divorce litigation.  That significantly changes the means of enforcement. Once the terms of a Marital Settlement Agreement are incorporated into a court order, any breach of that Agreement potentially exposes the party to contempt proceedings.  It is an extreme position, but it is one that litigants in a divorce matter are willing to invoke at the drop of a hat.

 

Bryan Tuk is an attorney, author, and musician. His recent book: risk, create, change: a survival guide for startups and creators, is available on Amazon. You can find out more about Bryans writings at http://riskcreatechange.com

 

Tuk Law Offices represents clients throughout Pennsylvania and New Jersey, focused on startups, entrepreneurs, arts & entertainment law matters, copyrights, trademarks and nonprofit organizations. You can learn about Bryans law practice at http://tuklaw.com.

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Morality Clauses & Employment Agreements: What Employers Need to Know

 Employers take risks every day with the people that the company hires – including top level managers and CEOs.  So, do brands and sports teams when they hire spokespeople or athletes on multi-year, multi-million-dollar contracts.  Anytime there are significant dollars committed to a single person over a long period of time, real risk exists. One […]

 Employers take risks every day with the people that the company hires – including top level managers and CEOs.  So, do brands and sports teams when they hire spokespeople or athletes on multi-year, multi-million-dollar contracts.  Anytime there are significant dollars committed to a single person over a long period of time, real risk exists.

One of the most impactful traits of the people you hire is their moral character.  This is especially true when the person you hire is your spokesperson, or your chief executive, or otherwise is the face of your organization.  One of the most impactful tools you have to control your contractual relationships is called morality clauses.

Long-term, multi-million-dollar employment contracts are a double-edged sword.  They can be a sign of your company’s financial health and purchasing power for star talent.  If, however, the company finds itself embroiled in a star employee’s misconduct, that same contract can become a massive liability if it is not structured properly.

Before we delve into the details of the application of a morality clause, consider this hypothetical example:

The Star Employee in a Regional and Growing Business:  Imagine that you are on the board of directors of a high-profile company.  You have hired a star performer to be your Chief Executive Officer.  He is personally responsible for generating 30-40% of the company’s annual revenue.  This continues for years. Suddenly, one day the city newspaper published a thorough, well sourced and researched story alleging the CEO was involved in multiple incidents of sexually inappropriate conduct both inside and outside the workplace with other employees.  The Board of Directors now needs an exit from the CEO’s multi-year employment contract.

Here is the question: When entering into a large or high-profile contract with an employee that has high visibility on your company or brand, how do you leave room to exit the deal if your star employee engages in conduct that the company finds socially or morally unacceptable?

This is where a well-drafted morality clause comes in useful.  A morality clause will enable an employer to unilaterally terminate an employment agreement if the employee engages in certain defined types of behavior.  The actual language of morality clauses can vary greatly from industry to industry.

Here is a sample morality clause:

If Employee commits any act, which is an offense involving moral turpitude under federal, state or local laws, or which might tend to bring Employee to public disrepute, contempt, scandal or ridicule, or which may embarrass, offend, insult or denigrate individuals or groups, or that may shock, insult or offend the community or the Company’s workforce or public morals or decency or prejudice Company, or which results in actual or threatened claims against Company, Company shall have the right to unilaterally terminate this Agreement without liability for the unpaid portion of any compensation due hereunder upon written notice to Employee.

 As you can see, there is quite a bit of subjectivity involved in the above language.  This is necessary because it gives the Employer more latitude to act when necessary because, at the time the contract is signed, future events and future employee behavior are completely unpredictable.

The balancing act involved is that Employers must be cautious to not throw due process out the window.  However, in today’s social media, a full-fledged existential scandal can erupt and spread within hours.  An employer that is slow to react (or is perceived to be slow to react) can find itself in the crosshairs of an angry online mob because of the misdeeds of one of its employees.  Engagement, timing, and speed are crucial.

If your employment contracts have due process provisions which require a degree of investigation before taking disciplinary action, you must ensure that the due process clauses work coherently with the morality clauses.  An independent investigation by an outside firm can take weeks or months to complete.

It is extremely important to note that morality clauses are also routinely used in family law matters.  Typically, morality clauses are part of custody agreements or a divorce settlement agreement also.  We’ll dive into that in the next article.

By: Bryan Tuk, Esq., Tuk Law Offices

Bryan Tuk is an attorney, author, and musician. His recent book: risk, create, change: a survival guide for startups and creators, is available on Amazon. You can find out more about Bryans writings at http://riskcreatechange.com

 Tuk Law Offices represents clients throughout Pennsylvania and New Jersey, focused on startups, entrepreneurs, arts & entertainment law matters, copyrights, trademarks and nonprofit organizations. You can learn about Bryans law practice at http://tuklaw.com.

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When In Doubt, Don’t Tweet It Out

How Libel Law Has Caught up with Twitter These days, one can get in trouble with a single hashtag.  It is no secret that Twitter and other social media platforms are inundated with the lowest kind of discourse and outright hostile and malicious statements.  Though defamation law is hundreds of years old, it continues to […]

How Libel Law Has Caught up with Twitter

These days, one can get in trouble with a single hashtag.  It is no secret that Twitter and other social media platforms are inundated with the lowest kind of discourse and outright hostile and malicious statements.  Though defamation law is hundreds of years old, it continues to evolve.  You can defame someone with a simple retweet and a hashtag.  Despite its seemingly superficial limitations, Twitter is an incredibly powerful publishing tool when in the wrong hands that can cause a lot of havoc.

We need to look no further than 1600 Pennsylvania Avenue to see how a single tweet can ignite the entire media complex (and news consumers around the world) into an instant firestorm of amplified outrage, commentary, and in a lot of cases, sheer ignorance.

Some recent notable litigation over allegedly libelous tweets include:

Actor James Woods just filed a defamation lawsuit alleging $10 Million in damages in California state court against Twitter user @abelisted who tweeted that the actor was “a cocaine addict.”

Musician Courtney Love’s misguided use of Twitter has resulted in multiple suits being filed against her by various parties, resulting in settlements of hundreds of thousands of dollars over the years.

Singer Ciara filed a lawsuit against rapper and performer Future, alleging $15 Million in damages over tweets that Future published about Ciara surrounding the break-up of their marriage.

You don’t need to be a public figure or in the entertainment industry to end up on the wrong side of a defamation lawsuit. From your smartphone or desktop, you can publish short commentary about any person or thing to the entire world.  As of Q1 2017, Twitter claims 328,000,000 active users.

That’s a lot of potential users generating a lot of content.  Tweets can also reach a non-Twitter audience via television and more traditional online news reporting.  Look no further than the “Mean Tweets” segment on the late night TV show Jimmy Kimmel Live! And you’ll quickly see what I mean.

So what is libel, anyway?  Simply stated, libel is a defamatory statement published in writing. The form of the writing is immaterial – Twitter certainly qualifies as a written publishing platform that can deliver a libelous statement.  A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, causes him or her to be shunned or injures his or her business.  Here is where the cyber world and real world intersect: statements made on Twitter can incite the public to threaten or actual harm to a person in the real world.

It is important to note that statements of opinion are not statements of fact.  In other words, a statement that “Mr. X is a thief” could be defamatory, but a statement of “I think Mr. X is a thief” might not be defamatory, based on the circumstances.  You should not automatically assume, however, that simply labeling a statement as “your opinion” makes it so.

Different legal standards apply to private citizens and public figures.  Generally, more types of statements could be construed as defamatory when made against a private citizen than a public official.  In other words, a politician or movie star has less legal protection than a private person does in this area of the law.  It’s important to note also that one can defame a company or business by publishing a libelous or defamatory statement about that company’s goods or services.  This is called trade libel.

In Pennsylvania, a cause of action for defamation must be asserted within one year of its occurrence.  This is an unusually short statute of limitations.

If you believe that someone has made a libelous statement about you on any social media platform, contact your legal counsel immediately.   Many social media platforms, including Twitter, may opt to take down the alleged defamatory statements if your counsel can be persuasive.

If you are a novice at Twitter, here are Tuk’s Rules of Thumb:

1. Use Twitter to praise colleagues, business partners, sponsors, and fans.  Stay positive!

2. Think very carefully before making a negative statement about any person or company on Twitter, even if it’s 100% true.  It can take years and tens of thousands of dollars to resolve a Twitter Libel case – or any defamation case for that matter.

3. When in doubt, don’t tweet it out.

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Allentown JazzFest launches its 2016 Season at The Hess Mansion

On August 29th, Performing Arts Live! launched the 2016 season of Allentown JazzFest at one of Allentown’s most historic properties, The Hess Mansion. With over 200 people in attendance, guests had an opportunity to mingle with leaders from the Lehigh Valley’s arts and business communities, sample cuisine and drinks from some of Allentown’s finest establishments, […]

On August 29th, Performing Arts Live! launched the 2016 season of Allentown JazzFest at one of Allentown’s most historic properties, The Hess Mansion. With over 200 people in attendance, guests had an opportunity to mingle with leaders from the Lehigh Valley’s arts and business communities, sample cuisine and drinks from some of Allentown’s finest establishments, and hear great music spanning the entire 2015 JazzFest artist roster plus live performances by some of the region’s best musicians.

Only seven months after its first public announcement, Performing Arts Live! has taken the Allentown JazzFest from a startup arts organization to what will be the second largest music festival in the Lehigh Valley during its 2016 season.

Several corporate sponsors banded together to help make the 2016 launch event a success: Hook Seafood & Grille, County Seat Spirits, HiJinx Brewing Company, QNB Bank, The Valley Ledger and the Tuk Law Offices.

In addition, many businesses from the region donated items and services to the Silent Auction: The Lehigh Valley Phantoms, Chickie’s & Pete’s, Northampton Coin & Jewelry Exchange, Crust Pizza, G&E Smoke Shop, Allentown Brew Works, Taking Care of Business, Arbonne, Younique, Sleeptastic Solutions, Flowing Lines Landscape, Norwex CleanerGreener Product Co., and Forward Thinking Fitness.

All of these businesses – the corporate sponsors plus our silent auction donors – have been instrumental in supporting the Allentown JazzFest, which is rapidly turning into one of the driving forces of Allentown’s renaissance.

Also, many thanks to Ray Bridgeman, David Olson, and Barte Shadlow who offered Network Magazine’s assistance by supplying guest bartenders for the Hamptons @ The Hess event.

At the Hess Mansion we unveiled two new central components of the 2016 Season: The Center Stage Series and the 2016 AJF High School Summit. First, the Center Stage Series will bring the region’s best jazz, blues and soul performers to venues all around Allentown. These free concerts will take place every first Thursday of the month starting in October and continue through April 2016, leading into the beginning of the 2016 festival. No tickets are required, but for event times and location, please visit our website at www.allentownjazzfest.org.

Finally, we are extremely pleased to launch a major educational component to the AJF: the AJF High School Summit, which will occur on the first day of the 2016 festival. Up to eight high school jazz programs will be invited to Allentown on April 29, 2016 to spend the day with nationally-renowned trumpeter, Al Chez. Mr. Chez was, for 28 years, the lead trumpeter in the World’s Most Dangerous Band/CBS Orchestra with Paul Shaffer on the Late Show with David Letterman. Both Mr. Chez and members of his band, The Brothers of Funk, will work with the students in small group masterclasses, and the day will culminate in a performance which will be open to the public.

Details on all the facets of the Allentown JazzFest’s 2016 season can be found at www.allentownjazzfest.org or by following the AJF on FaceBook.

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