March 26, 2001 12:00 PM

After spending several days at her Florida horse farm in July 1999, Nanette Sexton Bailey returned to the Woodstock, Vt., summer home she shared with third husband Richard Bailey. But there, she says, she met with an unwelcome surprise. In the master bathroom she claims she found one lace nightgown, one long brown hair in the sink (Nanette is blonde) and one unfamiliar toothbrush. When her 72-year-old spouse offered no explanation, Nanette, then 55, banished him to the guest house. Then she turned down the bed to find more brown hairs on the pillow and telltale stains on the sheet.

Instead of throwing some good china, Nanette says, she methodically stowed the nightgown, sheet and hairs in bags and placed them in her safe deposit box. Then, that December, after hiring a private investigator to trail her husband, she shipped the inventory to the Analytical Genetic Testing Center in Denver, where DNA tests showed that the stains were from bodily fluids, almost certainly from Richard and a female other than Nanette.

On Jan. 31, 2000, Nanette Bailey filed for divorce after six years of marriage. She charged that by violating an adultery clause in their amended prenuptial agreement, Richard, like her a multimillionaire, would have to pay her $16,000 per month for life unless she remarries. By doing so she became one of the first to deploy a devastating new weapon for spouses who feel wronged. “DNA technology has transformed the way we do business in the courts,” says former O.J. Simpson attorney Barry Scheck, who has used DNA to challenge convictions and help save inmates from death row. As a benefit of science, snaring a wayward spouse may not measure up to sparing someone the chair. “Is that the way I would encourage people to deal with marital problems? No,” Scheck says. “But there’s nothing illegitimate about using DNA evidence to prove infidelity, paternity or any other factual matter in a divorce case.”

Granted, the Bailey case has plenty of wrinkles. Because Richard and fourth wife Nanette lived much of the year near West Palm Beach, where Nanette owns a horse-breeding farm, she filed for divorce in Florida. But since Florida is a no-fault state, rendering adultery irrelevant in divorces, the crux of her case is the prenuptial agreement amended two years ago to include what Joel Weissman, her attorney, calls the “bad-boy clause.” In this, adultery is a so-called triggering event entitling Nanette to alimony.

“This case deals with a woman’s right to have the contract that she entered into upheld,” says Weissman. Apart from the messy sheets, Nanette bolstered her allegation with the aid of a private detective who documented several meetings between Richard and his third wife, Anita Bailey, now 61, from July through December 1999.

Richard’s attorneys counter that their client, who in depositions has denied having an affair, suffers from Alzheimer’s, and that a predatory Nanette bamboozled him into signing the revised prenup. In a deposition last fall, Richard did seem to struggle when asked what year he was born. “I don’t remember precisely when I was born,” he replied. “I wasn’t very loud or awake at the time, so it didn’t do too much for me.”

Nanette reserves most of her anger not for Richard, but for his lawyers and family, who, she thinks, have tried to keep her husband—and his money—away from her. But she’s saving any response for her court date in June. “My grandfather counseled me,” she says, ” ‘Don’t get into a pissing contest with a skunk.’ ”

Before their current travails, the Baileys seemed well-matched. “They had a lot of fun—he was a very affable guy,” says Nanette’s longtime friend, artist Nancy Roberts. When the two met at a Boston party in 1979, Richard, a father of five who was then CEO of the Massachusetts Financial Services Co., was worth about $11 million. A great-niece of sculptor Alexander Calder, Nanette earned a Ph.D. in art history. In 1988 she was awarded $1 million in a divorce from her second husband, computer-company founder Herbert Richman, after what a presiding judge called “an exceedingly ugly court fight.”

Wed in 1993, the Baileys settled into a life of dinner parties, world travel and Nanette’s lifelong passion, horses. But the marriage seemed to deteriorate with Richard’s seeming mental decline. Yet despite the acrimony, Roberts insists Nanette still has a soft spot for her husband. “This has all been such a terrible drain on her,” she says. “She still loves him. This is just a cruel situation.”

Richard Jerome

Don Sider in West Palm Beach and Tom Duffy in Boston

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