In many ways, spousal support cases are always complicated. For one thing, the case means – it always means – that one party has significantly more in the way of financial assets than the other.
Remember, there are three basic factors that help determine whether a spouse will be awarded support.
1. Need versus ability to pay
2. The statutory factors
3. The duration of the marriage
The first factor – need versus ability to pay – won’t be met if there’s not a significant disparity in the income levels between the parties. That’s, in large part, what makes these cases so inherently difficult. When you have a spouse who feels that he can spend the other spouse into the ground in an effort to avoid paying her what she should otherwise be legally entitled to, you have a really difficult (and sometimes borderline untenable) situation.
It’s not always stay at home moms who ask for or need spousal support, after all. In many cases, the wife (though, of course, it’s not ALWAYS the wife) is just the lesser wage earner. Whether she supported her husband through graduate school to put him in a strong earning position, or whether she works part time or in a lower paying but more flexible career in order to have the time and attention available to support the family, all too often women ultimately earn less.
In order to receive spousal support, she must earn significantly less. It’s a two prong factor – her need AND his ability to pay. Her need isn’t enough; in fact, proving that someone doesn’t have the money they should or could is really the easy part. He must also have the ability to pay, which means that he should have extra.
When one party earns THAT MUCH more than the other, it puts the lesser earning spouse in a really difficult position. He has the power to hire a fancy lawyer, to dilly dally around, to make vague promises that ultimately amount to nothing, and generally spend away what little reserves she has available to defend herself and make her case to the judge.
In general, in these situations, I think decisive, quick action is necessary.
We talk a lot about how separation agreements can help save money, resolve things more amicably, preserve the coparenting relationship, and ultimately help parties end up with agreements that make them happier – and I think it’s tempting, especially for a stay at home mom, to attempt to avoid paying too much in attorney’s fees. After all, she doesn’t have much that she can access on her own, and he’s probably already making conciliatory statements.
Hiring a lawyer is expensive. Hiring a lawyer for a contested case is even more expensive. But a case like this one requires action – quickly – so that too much money isn’t spent while wheels are spinning and the case isn’t resolving. In some cases, spinning wheels are fine – and ultimately they help parties reach agreements that keep cases out of court – but in cases like this, where resources are SO finite, you’ll want an attorney who can help you move things forward quickly, setting dates and forcing progress.
Part of the problem, too, is that the law has changed with regard to spousal support. Spousal support is no longer taxable to the person receiving it, or tax deductible to the person paying it. The whole tax deductibility piece was the one benefit that the payor spouse received. Without a benefit, the whole incentive for agreeing to support on his own is sort of lost. It’s not entirely impossible, of course; husbands still agree to pay support, for one reason or another, all the time. But it’s less certain, in many cases, and wives find often that they have to actually take their husband to court to get their award of spousal support in place.
It’s scary to think that you might have to file a contested divorce, schedule a hearing, and demand that you receive support. But the alternative – trusting in him, attempting to negotiate, waiting awhile to set a date – can make your case take longer and, ultimately, cost more (potentially even to the point that you can’t afford it). In a case like this, where there’s already an uneven balance of financial power, that could be disastrous.
I don’t mean to be alarming. In fact, I spend most of my time trying to argue the opposite, that agreements and negotiations best serve most people. But “most” is not “all”, and general advice can really be no substitute for something specifically related to your unique situation. If you’re a stay at home mom, with no earnings of your own, you’ll probably find that your financial situation can become precarious much more quickly than someone who has access to her own money.
I’m not saying that you don’t have an interest in what he has earned; what the two of you have earned through the marriage. You DO! I’m just saying your ability to get your hands on what you need may be compromised.
By filing for divorce, issuing discovery, and scheduling a pendente lite hearing, you can move your case forward quickly. You can get a temporary order for spousal support in place, and you can help make sure that you have the financial resources you’ll need to see the case through to a successful conclusion.
It’s not easy. In fact, it’s pretty challenging. Being a stay at home wife DOES make things a little more difficult. It’s not that your entitlement is less; it’s that your ability to insist on it is often compromised because of the uneven distribution of money. Sure, what was earned is half yours – but your half isn’t worth as much until you have free and unfettered access to it!
For more information, or to schedule a consultation with one of our divorce attorneys, give our office a call at 757-425-5200.