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WHAT MAKES A DIVORCE SETTLEMENT REASONABLE?

Published:Monday | January 19, 2015 | 12:00 AM

If your husband happens to be an oil tycoon with an estimated net worth of US$19 billion, it may be unreasonable for him to pay US$975 million to you for a divorce settlement. The question is, "How does anyone determine whether that amount should be less or more?"

What reportedly transpired between Harold Hamm and his second wife, Sue Ann Arnell, has given life to this discussion. In November, a court awarded Arnell US$1.0 billion for a divorce settlement. Both parties appealed against that ruling, but Hamm attempted to settle the judgment debt by sending Arnell a cheque. She rejected it.

For the vast majority of ordinary human beings, Arnell's actions may appear to be irrational, since a settlement of that nature should last several lifetimes and even put a serious dent in the national debt. However, after overcoming that knee-jerk reaction, we must consider whether there could be merit in the stance Arnell has taken.

In matrimonial property disputes, many factors converge to determine the terms and magnitude of an award. While I am not in a position to make direct comments about the merits of this case, some of the points noted in the media reports suggest that some factors could be said to be of universal applicability in matters of this nature:

1. The matrimonial property laws. Although in Jamaica the only property that is presumed to be owned equally by husband and wife is the family home, in some jurisdictions the law prescribes equal ownership of all marital property. If the reports are correct that Oklahoma laws make provision for equitable distribution, the test to determine an appropriate award in this case would be highly subjective, involving an enquiry of all the circumstances of Arnell and Hamm's marriage and business arrangements.

2. Arnell is said to be an attorney and an economist, who held executive positions in Hamm's company. She contended that she helped him to amass the fortune. If those assertions are true and there is proof of her direct involvement in the business, she may have a legitimate basis for pursuing a higher award. In Jamaica, we will not soon forget that the Court's finding that Mrs Chin worked in the business and helped to create the Lasco fortune was one of the important grounds for awarding Mrs Chin an equal share in that business.

3. There was no prenuptial agreement. In the absence of a carefully drafted and properly executed prenuptial agreement, each spouse has an unfettered right to claim an interest in each other's property. This is usually subject, of course, to proof of contribution (whether financial or otherwise) towards the acquisition, maintenance or improvement of the disputed property.

4. The marriage was of a long duration. The longer the duration of the marriage the more likely it is that the spouses co-mingled their resources and contributed to each other's success. In this case, the parties were married in 1988, and in most jurisdictions a marriage of short duration lasts less than five years.

5. There are children of the marriage. Although the maintenance of the children of the marriage is a separate issue from the matrimonial property dispute, the existence of those children and their need for support usually affects the determination of the property claim.

The reality is that the list of factors a court must consider in any matrimonial property case is not closed. Ultimately, the circumstances of each case will determine whether any settlement or award in divorce proceedings is reasonable or not.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send comments and questions to lawsofeve@gmail.com or lifestyle@gleanerjm.com.