High Net Worth Divorce Perspective of the Non-Breadwinner Spouse
If you spent decades of your life taking care of a family and undertaking domestic duties while your spouse earned hundreds of thousands of dollars per year in a career that you helped to support, will you be able to continue living comfortably if you file for divorce? You also may be wondering: How much alimony will I get? Or, you might be asking yourself: how much alimony can I expect, and what am I entitled to in a divorce?
As you ask yourself these questions, you may be concerned about, for example, whether a premarital agreement you signed can be enforced such that you receive no property or alimony and whether you will be able to afford attorney’s fees. An experienced high asset divorce lawyer can help with your questions and your case.
When Does a Premarital Agreement Become Unenforceable?
If you got married when you were young to another person from a wealthy family, or if you got married later in life after a divorce to a new partner who earned a significant amount of money during a long career, you may have been asked to sign a premarital or a prenuptial agreement. What can you do if the terms of the premarital agreement will leave you with almost nothing? You may be able to argue that the premarital agreement is unenforceable.
For example, Massachusetts law says that a premarital agreement is unenforceable if any of the following are true:
● Premarital agreement is not in writing (oral contracts are unenforceable in many states);
● You signed the premarital agreement under duress, or you were coerced into signing it (for example, your spouse threatened you when you did not want to sign the agreement shortly before your marriage);
● You did not have an attorney representing you at the time you signed the premarital agreement, and your spouse did have a lawyer (while most states do not require both parties to have legal representation in order for a premarital agreement to be valid and enforceable, when the party who signs away his or her right to benefits under the premarital agreement did not have a lawyer, the court may decide that there was unfair bargaining power and that the signing party was unlawfully pressured into signing);
● Terms of the premarital agreement are unconscionable (the terms of the premarital agreement must be reasonable and fair both at the time of the signing and at the time of the divorce, and if the terms are unfair at any point, the agreement may be unenforceable);
● Your spouse lied about his or her financial information, or failed to provide what is known as a “full and fair disclosure” of all of his or her assets, debts, and business interests; and/or
● Premarital agreement was signed hours—or less—before the wedding (while Massachusetts law does not require that a premarital or prenuptial agreement be signed in a specific amount of time before the wedding, signing very soon before a wedding can suggest coercion, duress, or unfair pressure).
Even if the entire premarital agreement may not be unenforceable, it is also possible that certain terms or clauses in the agreement are unenforceable. In most cases, if a court in any state determines that one of the terms of a premarital agreement is unconscionable or suggests duress or coercion, that specific term can be struck from the agreement and will not be enforced upon divorce.
Can I Make My Spouse Pay My Attorney’s Fees?
In high net worth divorces in which there is a primary earner and a non-breadwinner spouse who stayed at home with the couple’s children and performed domestic duties, that non-breadwinner spouse often has anxieties about affording an attorney on par with the other spouse’s lawyer. For example, if Party A is the primary breadwinner and Party B did not work outside the house, Party B might be extremely concerned that Party A will hire a very expensive and experienced attorney while Party B will not be able to afford an attorney at all, let alone one with the same experience as the attorney hired by Party B.
In most states in the U.S.—although it is important to keep in mind that state laws vary, and this may not be true in all states—a non-breadwinner spouse like Party B is able to request reasonable attorney’s fees. For example, under New York law, a court can direct Party A to pay attorney’s fees and other expert expenses so that Party B can maintain and defend the divorce action. But the court does not simply award attorney’s fees in all cases. It takes into account a number of different factors, including but not limited to:
● Income disparity between the parties;
● Necessity of the legal services;
● Reasonableness of the amount for attorney’s fees requested; and
● Complexity of the divorce case.
In addition to attorney’s fees for handling the divorce case itself, courts in New York and in other states also award attorney’s fees related to enforcing a court order for spousal maintenance, child support, and property division. In cases where the primary breadwinner spouse intentionally refused to obey court orders, some states automatically award attorney’s fees to the spouse who is trying to have the order enforced.
What Happens If My Spouse Refuses to Pay the Attorney’s Fees That Have Been Ordered?
In situations where the primary breadwinner spouse refuses to obey a court order to pay attorney’s fees, the spouse seeking attorney’s fees can seek to have that order enforced in a number of ways. For example, in New York, the non-breadwinner spouse can seek enforcement by one of the following:
● Judgment for the attorney’s fees, which can be enforced through wage garnishment;
● A sequestration, which is a situation in which a court sequesters the property of the other spouse and uses profits from the property to pay the attorney’s fees; or
● Non-paying party can be held in contempt of court.
Am I Eligible to Receive Alimony or Spousal Maintenance?
Generally speaking, in order to receive alimony or spousal maintenance under state laws, you need to request it. Then the court uses a number of different factors in determining whether spousal maintenance is appropriate. For example, the court might look at the following factors:
● Both parties’ income;
● Your own financial needs;
● Whether your spouse became the primary breadwinner because of your willingness to forego your own education or career opportunities;
● Contributions you made to your spouse’s education and career;
● Amount of time it would take you to finish your education or find a suitable career;
● Length of time your marriage lasted;
● Your age and health, as well as the age and health of your spouse; and
● Standard of living that you and your spouse enjoyed during the marriage.
Once a court determines that you should receive spousal maintenance, then it determines the appropriate amount and the appropriate duration. While many states have guidelines for determining spousal maintenance awards so that awards are streamlined and objective, this typically is not the case in high net worth divorces. If your spouse earns more than $500,000 per year, chances are good that the court will not use statutory guidelines—if there are guidelines in the state where you are filing for divorce—and will consider the lifestyle to which you became accustomed during the marriage, as well as some of the other factors listed above, in deciding how much alimony you should receive.
Seek Advice from a Divorce Lawyer
If you need assistance with your high asset divorce, an experienced high net worth divorce attorney can help you to seek a fair property distribution and reasonable attorney’s fees. Contact 1-800-FAMILY-LAW for more information about the services we provide to clients nationwide.