There’s never an easy answer to the “I don’t have money for my divorce” question. I’m a lawyer; I’m not really in the business of making money appear where there isn’t any.
In family law, there are a lot of different kinds of cases, though, and, in most of them, there is some money. It’s just a question of having access to it. In a lot of abusive relationships, one spouse controls access to all the money, leaving the other spouse feeling trapped.
It happens, too, in cases where one spouse stays at home or is disabled and not working. When the parties separate, the spouse earning the money withdraws access from it to the other spouse. It’s possible, too, that the spouse does this on the advice of his lawyer; technically speaking, anything earned, purchased, or acquired after separation is separate property.
But that doesn’t mean that it’s okay that one party goes on like normal, withdrawing any kind of support from the other and leaving them completely destitute. In fact, that’s exactly why divorce law exists – to protect the lesser earning spouse from finding that her foundation has dissolved from under her.
The law views a marriage as a partnership, much like a business. Whether one party or the other is technically out earning the money, the money earned belongs to both partners. All of the assets, in fact, that are earned, purchased, or acquired during the marriage become marital assets.
There are a few exceptions to this, like where someone has signed a prenup or already signed a separation agreement waiving their right to things they’d otherwise be entitled to receive but, for the most part, there’ll come a reckoning.
Of course, reckonings cost money. In order to force him to give you your portion of the marital assets, you’ll likely have to hire an attorney. I’ve found that, in general, husbands who hold all the cards (or, at least, husbands who THINK they hold all the cards) are often less inclined to move forward with the divorce quickly, or even at all, because they know that, if they do, they’ll have to do things like divide up their retirement accounts and pay spousal support.
If he’s not negotiating, or if he’s cut you off completely, and you have no access to any of the marital money on your own, there’s probably not much you can say to him to convince him to move forward properly. You’re probably going to have to hire your own attorney. In courts in the Commonwealth, you can represent yourself pro se (which is Latin for ‘on your own behalf’ and means that you don’t have a lawyer representing you) in divorce and custody cases – but it’s hard. I’m not one to try to be a Debbie Downer, but I can’t say that I encourage it.
So, what do you do? How do you get the money to hire an attorney?
Again – I’m a lawyer, not a magician. I cannot make money just appear for you. If you don’t have access to marital funds, that’s not to say that you won’t receive your share in equitable distribution – but it’s not like I can just magically secure a debit card tied to the marital bank accounts.
What I can do, though, is ask that you get an advance of attorney’s fees in pendente lite. Now, it may sound good, but this isn’t a ‘one size fits all’ type solution. It’s kind of hard to get an advance of attorney’s fees. There’ll need to be an account where the money is sitting that your soon-to-be ex could draw from. So, we may need to do a little discovery ahead of time, or you may need to know a little bit about the finances and where the money is kept.
It’s not ‘free’ money, either – this is money that will be counted against you during equitable distribution, meaning that you’ll have received a portion of your entitlement already by the time things are formally divided.
If there isn’t a pot of money to draw from, an advance of fees may not be possible. And, even so, you’ll need money to hire an attorney to get to pendente lite anyway – so the advance won’t come until you’ve already had to hire someone and pay a retainer fee.
There’s no perfect solution here. Whether you utilize a credit card (an existing one or get a new account in your sole name), call on a friend or family member, or make a withdrawal from an already-existing account (even a retirement account), the money has to come from somewhere.
I don’t hold all the answers for you on that point, except to say that I do recommend that you hire someone who can help make sure that he doesn’t continue to take advantage of you and refuse to give you what you’re entitled to receive.
For more information or to schedule a consultation with an attorney, give our office a call at 757-425-5200.