David Ricupero suspected his wife Polly of having an affair, so he taped her phone conversations and, based on what he heard, sued for divorce. David’s lawyer, William Wuliger, had the recorded conversations transcribed for use at trial. The parties settled the divorce out of court and signed an agreement that included this clause:
Except as herein otherwise provided, each party hereto completely and forever releases the other and his attorneys from any and all rights each has or may have. to any property, privileges, or benefits accruing to either by virtue of their marriage, or conferred by the Statutory or Common Law of Ohio or the United States of America.
After the divorce was final, Polly sued William Wuliger for invasion of privacy and violation of federal wiretapping law. Wuliger moved to dismiss the case based on the clause quoted. Polly argued that Wuliger was not a party to the divorce settlement and had no right to enforce it. May Wuliger enforce the waiver clause from the Ricuperos’ divorce settlement? Argument for Wuliger: The contract language demonstrates that the parties intended to release one another and their attorneys from any claims. That makes Wuliger an intended third party beneficiary, and he is entitled to enforce the agreement. If Polly did not want to release Wuliger from such claims, she was free not to sign the agreement. Argument for Polly Ricupero: A divorce agreement settles the affairs between the couple. That is all it is ever intended to do, and the parties here never intended to benefit a lawyer. Wuliger is only an incidental beneficiary and cannot use this contract to paper over his violation of federal wiretapping law.