Family Law

Fact pattern

Husband and Wife are divorcing after eight years of marriage. Husband is an attorney in private practice earning $120,000 per year. Wife was also an attorney making $100,000 per year when she married Husband. When Wife became pregnant six years ago, Husband and Wife agreed that she would become a stay-at-home mother.

After quitting work, Wife let her bar admission lapse, so that she no longer has a valid license to practice law. In this state, to become eligible to practice law once more, Wife would need to retake and pass the bar exam.

At about the same time, Wife and Husband signed a postnuptial agreement with only two provisions, both regarding their child. It specified that should they divorce, Wife would retain custody, and Husband would pay $2,000 per month in child support.

As the divorce proceedings have progressed, Husband and Wife’s disagreements have coalesced around two items. First, Husband came into the marriage with a savings account containing $10,000, which a deceased relative left to him. One year after the marriage, Husband closed that account and transferred all the money into a brokerage account. At the same time, Wife put $10,000 of her own earnings into the same account.

Since that time, the account has increased in value from $20,000 to $36,000 through a series of transactions involving differing portions of the account proceeds. Husband argues that because he contributed half of the initial account proceeds from separate funds, half of the current value should be considered separate property. In this state, separate property is not subject to division as part of the divorce proceedings.

The second item of disagreement regards the child support provision. Wife argues that the postnuptial agreement regarding child support should not be enforced. Husband and Wife have agreed upon, and the judge has approved, a plan to give Wife primary physical custody of the child. In the state in which Husband, Wife, and the child reside, the child support guidelines would indicate a child support award of $2,500 per month. Wife wants the $2,500 per month in child support specified in the guidelines, not the $2,000 per month specified in the postnuptial agreement.

Questions

1. What will Wife argue regarding characterization of the brokerage account as partially separate property, and who is likely to win? Explain.
2. Is the court likely to enforce Wife and Husband’s postnuptial agreement? Explain.
3. Should Wife request any type of alimony from Husband, and if so, what type? Explain.