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No prenup could cost oil baron billions in divorce

The divorce of oil baron Harold Hamm has had its dramatic moments. Among them: allegations that Harold was unfaithful - and a heated debate over whether the court should order his wife, Sue Ann, to turn over secret video and audio recordings she made of him at home.

But the split of the Continental Resources chief executive’s fortune, worth at least $11 billion, could turn on the absence of a single document – and result in the largest divorce settlement in history.

Despite efforts by the Hamms to keep their divorce proceedings secret, Reuters has learned that the couple never signed a prenuptial agreement when they were married 25 years ago.

Such an agreement, common when one or both spouses bring substantial wealth into a marriage, would have spelled out how to divide marital assets in the event of a divorce.

In its absence, the Hamm divorce has taken on dizzying financial complexity. Court documents indicate Harold Hamm, who owns more oil in the ground than any other American, already has turned over 50,000 pages of corporate information to his wife, a former attorney at Continental.

The documents lay out the financial minutiae of Harold Hamm’s sprawling energy empire. To divide it, the parties are expected to select a “business valuation” referee, an independent expert tasked with determining the worth of Harold Hamm’s stake in Continental and other companies, according to two people familiar with the matter.

The Hamms have settled one big issue: A lawyer for Harold said they have agreed to a "no-fault" divorce. That means the couple probably won't litigate Sue Ann's accusations of infidelity.

Other sources say the Hamms also have reached another agreement: They have decided on a date of separation around May 18, 2012, the date that Sue Ann Hamm filed for divorce. The date of separation could prove key to how assets will be divided, family law experts say. If the couple had separated in 2003, as Harold Hamm argued in previous court filings, any wealth accrued after that date by Hamm, through Continental and other businesses, might not be considered part of the marital pool.

The agreement on the 2012 separation date could be worth billions for Sue Ann Hamm, legal experts say. That’s because Continental’s value has nearly quintupled since 2007, and under Oklahoma family law, wealth gained through the efforts of either spouse during a marriage would typically be subject to "equitable distribution" between the parties. The phrase means the court will seek a fair, though not necessarily equal, distribution of assets.

Why Harold Hamm, 67, agreed to the 2012 date is unclear. Oklahoma attorneys familiar with the case say a settlement could cost him about $3 billion or more.

That's 60 percent higher than the largest reported divorce settlement - News Corp chairman Rupert Murdoch's $1.7 billion pay-out to ex-wife Anna in 1999. Murdoch has filed for divorce from his current wife, Wendi Deng, a spokesman said Thursday. The media mogul has a prenup, said a person familiar with the matter, but its terms aren't disclosed.

A multi-billion-dollar settlement would vault Sue Ann Hamm, 56, into the ranks of the 20 wealthiest women in America - worth more than Oprah Winfrey, the entertainment mogul whose fortune was estimated by Forbes at $2.8 billion this year.

To finance such a sum, Harold Hamm could be forced to sell a portion of his 68 percent stake in Continental on the open market to raise cash, or sell his interests in a network of firms that do business with Continental. Hamm hasn't commented on how he would finance any settlement.

Raising cash for a $3 billion settlement by selling Continental shares would cut Hamm's stake to less than 50 percent of the company, according to a Reuters analysis.

Hamm would remain the company's single largest shareholder. But a settlement could diminish his control by attracting new and powerful investors to the stock.

Continental spokeswoman Kristin Miskovsky said the company would not comment on the divorce but that "this private matter has not and is not anticipated to have any impact or effect on the company's business or operations."

Even so, Wall Street is watching. RBC Capital upgraded Continental shares in May to "outperform," but it also has warned that the divorce is a wild card. A sale of a large block of Continental shares would probably send the share price down, at least temporarily, said RBC analyst Leo Mariani. But if Hamm put more shares onto the market – increasing the portion of Continental equity available to outsiders - investors might eagerly snap them up.

Continental divide
At the outset, the Hamms sought to keep the proceedings quiet. Most divorce cases are matters of public record, say family law attorneys. But the Hamm case was filed anonymously in May 2012 under the names "Jane Doe v. John Doe." A strict protective order and confidentiality agreement keep the vast majority of the more than 200 filings under seal.

Five months after the case was filed, a judge ordered the Hamms to attach their names to the divorce. It is unclear if Harold Hamm agreed to the anonymous filing or sought to maintain it, and when Continental directors were notified.

Until shortly before the divorce filing, the Hamms kept a high profile as a couple. They appeared in public, smiling for cameras arm-in-arm. In April 2012, they were feted together at a black-tie dinner during which Time Magazine named Harold Hamm one of the 100 most influential people in the world.

The following month, on the Hamms hosted Republican presidential candidate Mitt Romney and 700 Republican donors in the mansion they bought together in 2009 in the Oklahoma City enclave of Nichols Hills. Romney had appointed Harold Hamm his senior energy adviser. The fundraiser brought in $2 million for Romney.

Nine days later, Sue Ann, Harold's second wife and a former executive at Continental, filed for divorce. Documents reviewed by Reuters show that the relationship had been stormy for years. Problems surfaced in 1998 and again in 2003, when Sue Ann left the Hamm house in Enid and relocated some 100 miles away to an Oklahoma City suburb with the couple's two daughters, according to documents filed this March by Harold's attorneys.

In court filings, his lawyers claimed their union had been "loveless" since the 1990s, calling it a "marriage in name only." By 2007, court documents show, Sue Ann began monitoring Harold's conduct by gathering electronic surveillance of her husband in the Hamms' Enid home.

In a December filing, Harold's lawyers demanded that Sue Ann turn over "home video or audio recordings" of him. One bill for surveillance was for $9,866.09, the filing shows.

Attorneys for Harold sought the surveillance tapes as part of an effort to show he had in effect separated from Sue Ann Hamm years ago, rather than in 2012. The content of the tapes, the legal team argued, would show that the Hamms had stopped behaving as husband and wife.

Sue Ann Hamm's attorneys objected. "Surreptitious adultery, even repeated adultery with the same partner, does not terminate a marriage or constitute legal separation," they wrote in a response.

Now, however, the point is likely moot. Given that the Hamms have agreed on a date of separation and to a "no-fault" divorce, the allegations of infidelity are unlikely to be a significant factor in a trial.

What remains: determining how much Sue Ann Hamm is entitled to receive. That determination could revolve in part around how important a role she played when she worked at Continental.

Neither Sue Ann nor Harold Hamm would comment on the case, and it isn't clear how Harold responded to the affair allegation in court.

At a court hearing in March, a Reuters reporter asked the oil tycoon how he was doing. Hamm replied simply: "Not very good."