The Tom Cruise/Katie Holmes divorce announced Friday is sure to launch a zillion nasty jokes over the next few weeks, but whether the split will be legally nasty will depend on the pre-nup (surely there is one) and whether Holmes gets the sole custody of daughter Suri, 6, she's seeking, legal experts say.
"The fact that she asked for sole legal and primary physical custody, that could be nasty," says Judge Lynn Toler , the judge on Divorce Court, now in its 14th year on TV.
New York-based matrimonial-law attorney Paul Talbert says the divorce could get messier than previously imagined. "Her filing for divorce and asking for sole custody is a clear indication that there's a disagreement between them right now with regard to how they're going to resolve issues of custody with Suri," Talbert says.
On the one hand, Cruise has a lot to lose in terms of image if his third divorce turns ugly, Toler says. "It seems like it would not be his style or her style, that they would do their best to make it as calm, cool and out of the papers as possible."
On the other hand, even non-famous, non-rich couples can go nuclear over custody issues, she says. "Kids are where the huge fight is," she says. "People want their kids, they want the ability to be with them on a daily basis, and this often becomes one of the most common factors that trigger the nastiest divorces."
Bonnie Fuller, editor-in-chief of HollywoodLife.com, says that if Cruise wants to protect his public image from a divorce battle, he should agree to granting Holmes sole custody with generous visitation rights for him. If nothing else, it would dampen buzz she's trying to protect Suri from being indoctrinated in Scientology, the controversial church in which Cruise has a leadership role.
Already, entertainment websites such as TMZ are speculating that Scientology is the reason Holmes is splitting, because she feared Cruise would drag Suri deeper into the church.
"I think there's going to be speculation about, 'Does Katie want custody because she doesn't want her to be raised as a Scientologist?' " Fuller says. "But he's always been seen as a good and devoted dad, so he cannot sacrifice having a relationship with his daughter, either."
No matter what, a battle over custody is unpredictable, says Hollywood PR veteran Michael Levine. "It's hard to envision a scenario where an amazingly controlling guy like Tom Cruise would respond (well) to custody challenges with Suri, and that could play out in any number of ways. We just don't know."
Toler says Cruise and Holmes would not be on a level playing field going into a divorce. Holmes is much younger than Cruise, her career is not as huge, from the beginning she said she had a crush on Cruise and that she was marrying her idol. Plus, as a two-time divorcé, he's more psychologically prepared for what's about to happen than she is.
"It could be a situation where she does not have the same caché and control, even though I'm sure she has a good lawyer," Toler says. "I worry about the equity in power in a divorce situation."
There is one possible factor in favor of a reasonably smooth divorce: "I'm sure there's an iron-clad pre-nup," says Toler. A pre-nup can right away resolve a lot of the economic issues in any divorce, cutting down on the fighting, she says.
Indeed, it's probable Cruise had a pre-nuptial agreement with Holmes, his third wife, 16 years his junior and only a starlet compared to his international movie-idol-multimillionaire status, says Levine.
"I think we can reasonably assume he had a pre-nup - Tom Cruise is not that crazy," Levine says.
Talbert says he predicts that there is a pre-nup and one that involves a "substantial payout" to Holmes. Besides, Holmes is substantially well-paid herself, and that income will probably be hers to keep, he says.
Despite their fame, Talbert expects the messier details of the divorce will not spill out because of likely confidentiality clauses. "There won't be a battle in the press," he predicts.
It's significant that Holmes filed for divorce in New York, an equal-distribution state, meaning that instead of splitting everything 50-50 as in a community property state such as California, judges decide what's a fair distribution based on guidelines. Also, New York divorce judges have more discretion in deciding the causes for ending a marriage, including disagreements over raising children.
Talbert says filing in New York suggests Holmes wants Suri to remain in their New York home. Any pre-nup should stand regardless, he says, because New York has a strong public policy in favor of pre-nups.
"It's very difficult to invalidate a properly executed pre-nup," he says. In New York, custody "laws are gender neutral. It's a pure best-interest-of-the-child analysis."
The couple also will eventually have to agree on the details of how Suri is going to be supported, says Talbert, including how much time the child will spend with each parent. Details such as nannies, schooling, and travel to movie sets to see Cruise or Holmes will have to be hammered out, too. "How are they going to divide her substantial additional expenses? Is Tom covering 100% of them or is Katie going to contribute?"
No matter what happens in court, Cruise still has to worry about the court of public opinion around the world, says Levine. Holmes? Not so much. "She's young and her career so far, well, let's just say she's not hit a home run on anything she's done yet. Hilary Swank she ain't."
But at least she doesn't have to put up with the torrent of jokes sure to made about Cruise on late-night TV, Levine says. "Over the next two to three weeks, every talk show host will use this as a joke line - every night, drip, drip, drip, over and over and over."