As you probably already know, not all wives are SAHMs. Goodness knows I’m not! From a divorce perspective, having access to your own income, benefits, and opportunities is so critically important. I’ve said it before and I’ll say it again – one of the biggest evils when it comes to divorce and child custody cases is an uneven distribution of wealth. When one partner – often the husband – has access to more money and resources than his partner, he can put her in a really difficult position fairly quickly.
Even though it may feel like being the higher wage earner means you have more to lose in a divorce situation, the reality is that you will also be able to pick up the pieces more quickly and move on with your life more successfully after your divorce is finalized.
But what happens in the meantime?
Sure, in some ways, to be the higher wage earner is to be somewhat vulnerable. This is especially true because, in many of the cases I’ve seen where the wife is the higher wage earner, it’s a really uneven balance. Instead of having, essentially, a “stay at home husband,” who takes care of the home and raises the children, many of the higher earning wives I’ve seen do it all – work AND take care of the home and kids – while their husbands fail to pick up the slack. In fact, ‘slack’ is probably the best word I’d use to describe many of those men. Lazy and unmotivated, they’re much more inclined to depend upon their wives to provide than to go out and earn a living themselves (or participate in the domestic labor associated with staying at home).
If you earn more than your soon-to-be ex-husband, you may have to pay him spousal support.
In that sense, it has more ‘bite’ to think that, even after divorce, you might have to continue to provide for an already spendy, lazy, or unmotivated husband. And, it’s true: spousal support laws in Virginia were designed to be more ‘equitable,’ which means that they’re designed to apply relatively equally whether the spouse or former spouse is male or female. Whether it’s a ‘stay at home mom’ or a lazy, unmotivated husband, it doesn’t matter. In either scenario, spousal support is a possibility.
If you earn more than your soon-to-be ex-husband, you will have to divide the ‘marital share’ of anything earned, purchased, or acquired between the two of you.
Equitable distribution, too, works in much the same way as it does in a scenario where the wife is the lesser earner. The ‘marital’ share is divided; the separate and/or premarital shares are separately attributed to the party who brought them to the marriage or earned them separately. This means that, if your retirement account is worth more, or you used your larger paycheck to pay primarily for the marital residence, these are marital contributions – rather than separate ones- that will be divided out in the divorce process.
If your source(s) of wealth are beyond your own personal paycheck (like, for example, in the case of an inheritance and/or trust fund that you receive), the analysis is likely different, unless you’ve commingled those assets to such a degree that we can’t separate it out. In most cases, if the wealth isn’t marital in nature – meaning something that you earned, purchased, or acquired during the marriage – then it’s separate, and you retain your sole and separate interest in it after divorce.
If you earn more than your soon-to-be ex-husband, you may still receive child support!
Child support is based off of your combined family income, but it also depends on how much parenting time you have. If you have primary physical custody, it’s still possible that your child’s father would pay child support to you.
There are a few variables that go into a child support calculation – your gross income(s), any support paid for children born to other relationships, the amount paid in work-related childcare, the amount paid for health insurance for the children only, and the amount of parenting time you each have – but it’s based off of a formula. It doesn’t matter who runs this guideline calculation; what matters is what, exactly, goes into the formula. But still, even a lesser-earning coparent could end up paying child support to a higher earning coparent!
If you earn more than your soon-to-be ex-husband, you probably won’t have to pay his attorney’s fees.
For the most part, the court believes that each party is responsible for paying his or her own attorney’s fees – and for choosing an attorney that he or she can afford. You are unlikely to be responsible for his attorney’s fees, though he will likely ask.
Could it happen? Sure. But in most cases, where attorney’s fees are awarded, it’s related to the other party’s refusal to participate and follow the rules. (Say, for example, he requested discovery and, after repeated attempts to get you to respond, he finally had to file a motion to compel you to provide the discovery responses – over time, these kinds of failures to respond and participate in the legal process according to the rules can result in awards of attorney’s fees being ordered.) If you’re following the rules and participating in the legal process, though, you are pretty unlikely to have to pay his attorney’s fees.
It doesn’t feel good to divide the assets you’ve carefully accumulated over the years, especially if your soon-to-be ex-husband really hasn’t contributed. It doesn’t feel good to have to pay more to someone who has been a spender while you’ve been the primary earner and saver.
Still, being a higher wage earner is a position of power, and it’s one that helps ensure that, no matter what happens in your divorce case, you are much more likely to be better off over the long term.
For more information about divorce, spousal support, child support, equitable distribution, or the process generally, visit our website at hoflaw.com or request a copy of our divorce book for Virginia women.