That’s Confidential— What is an NDA, and how does it protect you in a divorce?

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A high-profile celebrity split involving golf legend Tiger Woods highlights the use of NDAs within romantic relationships.

In a complex case that involves two separate but related suits, Woods’ ex-girlfriend Erica Herman is suing a trust owned by Woods for $30 million and seeking to nullify a Non-Disclosure Agreement (NDA) established at the beginning of their relationship.

Herman, who lived with Woods at his estate in Florida while they were together, and claims they had an oral agreement regarding her tenancy, filed suit against the Jupiter Island Irrevocable Homestead in October 2022. She alleges agents of the trust tricked her into leaving the residence, then locked her out permanently, keeping $40,000 of her own money.

The couple’s breakup and dispute became public in March 2023 when Herman subsequently filed suit requesting that the court evaluate and release her from the NDA she signed in 2017.

Having experienced the media frenzy and personal fallout from the 2009 reports of his infidelity and divorce from his first wife, Elin Nordegren, it’s not surprising that a star of Woods’ caliber would formally request confidentiality in future romantic relationships.

To protect privacy, sensitive information, and reputation, it’s common for celebrities and other high-profile or high-net-worth individuals—last year, Forbes reported that Woods’ estimated net worth had surpassed $1 billion—to include NDA language in a settlement or prenuptial agreement. In the Woods-Herman case, the trust argues, she violated an NDA clause that required “confidential arbitration in all disputes”—in other words, prohibited filing in open court.

A (redacted) copy of the NDA provided by Woods’ team to a Florida court shows that Herman agreed to out-of-court arbitration of any disputes “as consideration for the opportunity to continue to” spend time with Woods and “be privy to certain private and confidential aspects” of his personal life.

However, Herman’s suit claims she should be removed from the NDA under the terms of the federal Speak Out Act, signed into law by President Biden in January 2022, rendering pre-dispute NDAs unenforceable in cases of sexual assault or harassment.

Although Herman has not made specific allegations of sexual abuse or assault, if she were found to be a victim of sexual assault or harassment, under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, she could not only speak publicly but also bypass arbitration to proceed with a tenancy trial.

Woods denied Herman’s complaint in court documents filed March 13; lawyers for the trust said she is not a victim of sexual misconduct and called her a “jilted ex-girlfriend.” It remains to be seen how this case plays out. Notably, because the couple was not married, there are limited legal provisions for cohabitants, which do not typically include rights to support, equitable distribution, etc. Further, the court is less likely to intervene in end-of-relationship conflicts between unwed parties.

Nevertheless, this case may have you wondering about the role of an NDA in divorce.

Are they just for the rich and famous?

There are numerous reasons a couple might opt for an NDA.

NDA stands for non-disclosure agreement or non-disparagement agreement. It’s a confidentiality agreement that prohibits the signing parties from sharing certain information.

NDAs are used:

  • To prevent the airing of private information, potentially damaging personal details, or criticism in public forums—especially in the age of social media.
  • To avoid interference or disruption in the relationship with children or sharing about custody issues (particularly in high-conflict situations). Also, it prohibits publicly sharing information about the children (photos, personal or life details, etc.) without mutual agreement.
  • When a spouse’s business ownership or employment situation involves sensitive or proprietary information (finances, IP, trade secrets, etc.)
  • If a spouse has previous legal matters they want to keep private.

An NDA should be customized to your particular circumstances, but the major components typically include the following:

  • Defining confidential information.
  • Identifying the parties that will have access to the specified confidential information.
  • Specifying the term/length of the agreement.
  • Detailing how the information may and may not be used.

You don’t have to wait until you’re embroiled in a messy split to request an NDA. Some couples put confidentiality clauses in prenuptial agreements as guidelines for what spouses can and cannot share publicly during the marriage or in the event of a dissolution.

If you’re considering an NDA as part of your divorce settlement or prenuptial agreement, working with a family lawyer experienced in confidentiality agreements is essential. The skilled attorneys at SFLG can help you tailor an NDA to your precise circumstances and ensure that it is legal and enforceable.

by Debra Schoenberg

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