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When Former President Trump married Melania, he had her sign a prenuptial agreement, which he also did for his prior two marriages. A prenuptial agreement is a contract between one person and their future spouse that is entered into before the marriage. In a prenuptial agreement, the two parties disclose to each other everything they own and set forth how they will divide their money, property, and assets in the event of divorce. A prenuptial agreement will be enforceable if, among other requirements, the agreement is not unconscionable. This means that it cannot be so one-sided that it shocks the conscience of the reader. However, agreements concerning child support and child custody will almost certainly not be enforceable.
It is reported that Melania renegotiated her prenuptial agreement with Mr. Trump after he won the presidential election in 2016. The two have one son together, Barron Trump. Melania allegedly renegotiated the prenuptial agreement with Mr. Trump to ensure that their son would receive the same inheritance as Mr. Trump’s eldest three children from prior marriages. If the court finds that their prenuptial agreement is valid and enforceable, then Melania and Donald Trump’s money, property, and assets will be distributed according to the prenuptial agreement.
But what would happen if the couple did not have a prenuptial agreement? Melania and Donald would have to come up with an agreement with regard to the divorce and all of the divorce-related issues, such as child support, child custody, distribution of assets and debts, and maintenance (alimony). Otherwise, their money and property that both Melania and Donald acquired during the marriage will be subject to equitable distribution and divided in a way that is considered fair and just based on various factors and a complete stranger, otherwise known as a Judge, will determine how much support a party has to give, where any minor children will reside, and who makes decisions regarding those children.
Under New York law, and assuming that Donald Trump’s income is greater than that of Melania, Mr. Trump would be considered the “more monied spouse,” meaning that Melania would be entitled to maintenance. New York law provides a formula and guidelines for calculating the amount of maintenance to be paid and the duration for these payments. New York courts may not deviate from this formula unless the maintenance award is either unjust or inappropriate. Whether a maintenance award is unjust depends on many factors, including age, health, future earning capacity, and the standard of living of the parties during the marriage. The formula for maintenance and its duration is based on both spouses’ incomes and the length of the marriage.
Calculating the maintenance that Mr. Trump would owe Melania depends on their incomes and whether a court would require one of the spouses to pay child support. The formula applies only to the first $203,000 in income of the spouse that maintenance is being sought from. Mr. Trump’s income is likely greater than $203,000, which means that the court would consider certain factors (age, health, standard of living, differences in earning, etc.) to determine the maintenance required on the income above $203,000. However, this “cap” on maintenance calculations is revisited every two years and may increase in the future.
The duration of the maintenance depends on the length of the marriage. Melania and Mr. Trump married in 2005, so if maintenance was calculated right now, the maintenance Mr. Trump would owe Melania would be based on an eighteen-year marriage. For marriages of fifteen to twenty years long, the less monied spouse is entitled to maintenance for a duration of 30% – 40% of the marriage. Therefore, Mr. Trump would be required to pay maintenance to Melania for between approximately five years and five months (30% of the length of their marriage), and seven years and three months (40% of the length of their marriage).
Another issue that Mr. Trump and Melania would have to determine is custody of their child, Barron. It seems as though if this were an issue right now, Melania would seek sole custody of their child, Barron. Sole custody means that only the parent who has sole custody of the child has the authority to make decisions about the child. On the other hand, joint custody means that both parents share the authority to make decisions about the child. This requires both parents to be capable of effectively communicating with each other to keep each other informed of the child’s needs and making decisions together. Melania would likely have physical custody of Barron due to Trump’s possible incarceration, and even without being incarcerated, he has been consistently traveling for his campaign for reelection. As Mr. Trump has been traveling to New York for his arraignment and back to Florida for his speech, Melania remained at their home in Florida with Barron. In the court’s determination of custody of Barron, the court would consider the best interests of the child. Some of the factors the court would consider in this determination are the child’s age and health, the ability of each parent to provide for the child’s needs, the child’s preferences if the child is of sufficient age and maturity, and any other factors that may affect the child’s well-being. After the court makes its custody determination, it will either set a visitation schedule that suits both the child and parents’ schedules, or the court can keep the visitation as agreed between the parties.
In New York, a parent may be entitled to child support if they have legal custody or physical custody of a child. If Melania was granted physical custody of Barron, Mr. Trump would likely be required to pay child support. The amount of child support is determined by a formula set forth in the New York Child Support Standards Act (CSSA). This determination takes into account the gross income of both parents and the number of children the parents have under the age of 21. For one child, child support will be calculated by combining the parents’ gross income and determining 17% of the combined income. For two children, it is 25%. The parent required to pay child support will be responsible for his pro rata share of the amount that this calculation yields. There are also mandatory add-ons that require the parents to split the child’s medical expenses and childcare expenses based on their pro rata share. There is presently a cap on combined parental income at $163,000, however that number changes as well over time. The Court has discretion as to how much income child support should be paid on over the cap.
This may be the question that many people are asking after Mr. Trump’s arraignment and the lack of Melania’s presence by his side throughout this situation. Whether or not Melania should file for divorce if her husband is incarcerated is a personal decision based on a variety of factors. She could decide that it is best for her to stick by her husband’s side and work through the challenges of having a spouse in prison. On the other hand, it is plausible that she decides that divorce is the best option for the couple.
In making this decision, it may be helpful for Melania, or for anyone else going through something similar, to consider the following:
No matter the circumstances of divorce, it can be very difficult for children to understand and work through. If there are children involved, it is important to consider how they will be affected by their parent’s incarceration and possibly simultaneously dealing with their parents’ divorce. If Melania decides to divorce Donald Trump, she must consider the emotional wellbeing of their son, Barron, who is currently 17 years old. In this type of situation, it may be helpful to seek the advice of a family therapist or counselor.
Incarceration can have significant financial implications for a family. It may be helpful for the spouse of an incarcerated individual to consult with a financial advisor or attorney to make sure that they fully understand the potential implications of a divorce to their finances. This may not apply to Melania and Mr. Trump, as they likely have much higher incomes than the average person, but it would still be helpful for Melania to consult a professional to ensure that she understands all the implications of a divorce.
Incarceration and divorce are emotionally challenging experiences for both spouses, and can be even more challenging when the two are paired together. If Mr. Trump is incarcerated and Melania considers divorce, she must consider how it will impact her emotional well-being, as well as the emotional well-being of the rest of their family. This may be very difficult for Melania, as her relationship will be under a microscope in the public eye. Many are already wondering the status of the relationship between Mr. Trump and Melania after she did not appear by his side while arriving for his arraignment or at his address at his Florida home, and her actions will continue to be monitored throughout the entire process. It is important for Melania, or anyone going through a similar situation, to consider her emotional well-being and to consult professionals to guide her through the process.
