Divorce is notorious for being one of the most difficult times in a person’s life. The process is emotionally taxing and rarely simple. Unfortunately, the division of assets process can be more complicated when a wealthy couple chooses to divorce. High net-worth individuals should seek the counsel of a family law lawyer who is experienced in handling high net-worth divorces. A qualified lawyer can protect your financial interests and find ways to avoid unnecessary complications. This article aims to provide basic knowledge about high net-worth separation and advice about where to turn for assistance.
High Net-Worth Individuals and Divorce
People with vast amounts of property and households with multi-million dollar assets are considered high net-worth. High net-worth separation and divorce is a divorce between couples with a significant combined total net worth.
Under Ontario Law, marriage is considered an equal partnership, and it follows that when a marriage comes to an end, the law requires an equal division of property. The general rule is when a marriage ends, the value of all property acquired during your marriage and maintained through the separation should be divided equally between the parties. [Section 5, Family Law Act 1990] This rule applies, in particular, to the matrimonial home. However, there are certain types of property that do not require any division upon divorce. [Section 4, Family Law Act 1990]
High net-worth divorces tend to be more complex because high net-worth individuals have large amounts of property (often held in different forms) and the process of dividing and separating those assets takes time and competent professional assistance. A high net-worth individual might have high-value real property (sometimes in more than one location), stocks, bonds, trusts, and business interests. They also may have come into the marriage with a pre-nuptial agreement and trusts of their own. This type of divorce differs from the average divorce and requires the assistance of a specialized and experienced lawyer.
Grounds For High Net-Worth Separation And Divorce In Canada
There are three legal grounds for any divorce, including those between high net-worth individuals. When petitioning for divorce a spouse may allege:
- Cruelty [Section 8(2)(b), Divorce act 1985] – That one spouse has been physically or mentally cruel to the other such that living together has become intolerable.
- Adultery [Section 8(2)(b), Divorce act 1985] – One spouse has committed adultery and the other has not forgiven them.
- Separation [Section 8(2)(a), Divorce act 1985] – The parties have lived apart for at least one year and consider their marriage to be over.
Grey Divorce- Explained
Grey divorce refers to the demographic trend of older people getting divorced who have been married for a long time. Grey divorce is also known as “silver or diamond splitters” and this term is a play on the grey colour of an older person’s hair. The prevalence of divorce among the over 50 population is increasing. In fact, the rate of divorce for those over the age of 50 has doubled over the last 20 years. The reasons for the high rate of divorce among this older population are varied but some of the factors at play include:
- people postponing their divorces until their children are grown;
- couples find that after they become empty nesters they no longer have much in common;
- couples who have been married before have a greater likelihood of divorce and second marriages often occur among an older population.
Grey Divorces are also sometimes high net-worth separations and divorces because older people are more likely to have amassed enough wealth to become high net-worth individuals.
High Net-Worth Separation vs. Grey Divorce
While a high net-worth separation or divorce can occur at any age, they are most common among an older population for the simple reason that older people have had a longer period of time to acquire enough wealth to be considered high net-worth individuals. A high net-worth divorce can be difficult due to the necessity to unwind and divide a large number of assets and business interests. A grey divorce can have the same complications caused by wealth but they can be further complicated by factors related to age including:
- Mental competency
- Social security
- Long term care considerations
- Estate planning
- Interests of adult children
Challenges Unique to High Net-Worth Separation And Divorce
A high net-worth separation can present unique challenges. The primary challenge with any divorce is the emotional turmoil they cause. With a high net-worth divorce, the second biggest problem is usually accurately valuing the family’s property. When a family’s portfolio includes business interests, professional practices, and real estate holdings, the assistance of a professional appraiser will be needed to accurately define the family’s total wealth. Stocks, bonds, pensions and retirement accounts will further need to be valued and divided in a way that is fair and logical.
Common Mistakes Made in High Net-Worth Separation And Divorce
Common mistakes individuals make in high net-worth divorces include:
- Agreeing to settle too quickly: One of the most repeated mistakes is one of the parties agreeing to settle before they are ready because the level of stress and trauma involved in the transaction becomes overwhelming. It is necessary to take the time to evaluate the offer rather than settling too hastily.
- Hiding assets from their spouse: Some people deliberately hide their property from their spouses to prevent their spouse from receiving their fair share. The Family Act of Ontario clearly states that spouses must disclose all assets as part of any divorce settlement. [Family Law, 1990]
- Hiring the wrong lawyer: Lawyers who deal in high net-worth divorce are uniquely skilled in working with clients with large estates. If you don’t hire a lawyer who specializes in high net-worth divorce, they will lack the necessary experience to spot potential issues.
What A High Net-Worth Separation Lawyer Should Know
- How to divide property;
- How to reduce tax obligations;
- How to determine self-employment or corporate income;
- How to determine child support;
- How to evaluate all the financial portfolios of the couple;
- How to ensure that their clients’ reputation does not get tarnished.
|Alternatives to Litigation
There are three alternatives- Mediation, Arbitration and Collaborative Separation
|Mediation||Mediation allows parties to reach a solution by following the guidelines of a third party called a mediator. Although it is not necessary, it is a key way to resolve the dispute.|
|Arbitration||An arbitrator is appointed to hear evidence and make an expert determination. The advantage is that there is no defamation and the proceedings happen in a closed room.|
|Collaborative Separation||Both parties agree to use mediation and negotiations to arrive at a conclusion.|
If you are in need of a highly skilled divorce and separation lawyer who specializes in high net-worth clients, call us at Gelman & Associates.
“Get in touch with your high net- worth divorce lawyer as soon as possible to avoid possible problems.”
– Gelman & Associates
At Gelman & Associates, we understand your needs and are able to provide you with expertise and tailored solutions for high net-worth separation and divorce. We have experts who regularly navigate large, complex financial portfolios and have extensive experience in the field of high net-worth divorce. Call us at (416) 736-0200 to discuss your case.
High Net-Worth Separation and divorce FAQs
Under Ontario Law, marriage is considered an equal partnership and it follows that when a marriage comes to an end, the law requires an equal division of the property. The general rule is when a marriage ends, the value of all property acquired during your marriage and maintained through the separation should be divided between equally between the parties.
Any asset acquired before or after the marriage does not come under the scope of property that can be divided.
It is illegal to hide money or assets from your spouse in the case of a divorce.