Unmarried, Stay at Home Virginia Mom: Will I have to get a job?

Posted on Dec 2, 2019 by Katie Carter

We talked the other day about being an unmarried stay at home mom, what happens after you and your child’s father break up, and what options you have to support yourself. Without spousal support as an option, you’re pretty much limited to child support – which is a difficult position in which to find yourself.

If you’ve stayed at home, you likely don’t have much (if any) of a source of separate income, and, if you’re not married, you haven’t earned a portion of what your husband has earned during the course of your relationship. It’s kind of cruel, especially when you’ve lived together as practically married people, but the court doesn’t have the authority to award you anything that the law doesn’t contemplate. As far as the law is concerned, if you’re not married, you’re legal strangers and under no real continued obligation to each other – except with respect to any children you’ve had in common.

For many stay at home moms, the decision to stay at home was made for a legitimate reason. Whether it’s because of the special needs of your children or the fact that your education and training wouldn’t pay enough to compensate for the daycare you’d have to pay in order to actually be able to work, there are lots of real, legitimate reasons that drive women to leave the workforce. (Not to mention, of course, the real value of the important work that you’re doing!)

When you and your child’s father break up, though, it changes everything, especially when you’ve stayed at home. You probably wonder how to make ends meet, and it may be that child support just isn’t enough to make up for your lack of income. At the end of the day, once you and your child’s father separate, the world is an entirely different place. So, what do you do?

Can the court force me to go back to work?

No! The court definitely can’t force you to go back to work. The court doesn’t have that kind of power. Even in a divorce scenario, the court can’t force someone to go back to work against their will.

If you’re capable of earning, though, it is possible that the court could impute income to you – meaning, make you responsible for earning a certain amount of money (by adding it into the child support calculation) regardless of whether you actually do earn it.

That happens much more often in a spousal support context than in a child support context, but it could, at least theoretically, happen with child support as well. It may or may not be advantageous for him to pursue, though, and I’ll explain to you why, as well as including a couple child support calculations as a guideline.

How is child support calculated?

Well, it’s kind of complicated. But, if you go to the statute you’ll see that there’s a table there, if you just scroll down a little bit – with the combined monthly income of the parties down one side, and, across the rows at the top, the number of children in common that you share. If you go down to your combined amount of monthly income (or, his monthly income, if you’re not working) and then scan across to the number of children you have in common, you’ll see the statutory child support guideline calculation.

That’s not the child support number – that’s an amount that you share, pro rata (meaning, proportionally, based on your income) responsibility for. It’s further offset by things like work-related childcare and health insurance premiums.

If you’re not working, you likely don’t have work related childcare expenses – that’s a significant savings to him, as I’ll discuss more in a minute. If you’re not working, too, your combined monthly income is lower, which means the monthly amount of child support is lower, too.

Let’s look at some real world examples, based on a case where mom has primary physical custody (meaning that dad has 89 or fewer days of parenting time in a calendar year).

Let’s assume he earns $100k annually, and you’re a stay at home mom to two children. He pays $100 a month in health insurance for the children, so we’ll build that into the calculation. You don’t have any work related child care expenses. The total child support under this scenario is $1440 per month.

Now, let’s assume he earns $100k annually, and you earn $30k annually. You still have two children. He pays $100 a month in health insurance for the children, and you pay $1000 a month in child care. In that case, guideline child support is $2033 per month.

There are two different factors at work in this second calculation: not only is your responsibility now for a combined $130k income annually (which means that you’re sharing a proportional responsibility for a greater support number, $1669 versus $1439 when you just earned $100k combined), but you’re also having to share those work related child care costs.

I show this to illustrate that you working may not actually alleviate dad’s child support obligation, like he might think. If you take out the work related child care costs (like if, for example, your children are all school aged and no additional childcare would be necessary), his child support obligation does go down – to $1264 – but it’s not that significant. I mostly tell you this to illustrate the point that an argument of imputation of income is unlikely to be made, mostly because it’s not all that likely to change the support figure that much. Certainly not enough to warrant the extra legal expenses involved in trying to convince the judge of the necessity of imputing income to you.

Shared physical custody would, of course, change the calculation as well. But under a shared physical custody scenario, the exact number of days that each parent has would be relevant, and would affect the calculation – so, as you can imagine, it’s much harder to run a guideline calculation for illustrative purposes and have it make all that much sense.

Anyway, to summarize, I think it’s unlikely that a judge would be able to force you to go back to work. It’s more likely that your personal situation would make it more or less necessary, depending on whether your child support alone would be enough for you to survive. In general, the guidelines are not particularly generous. When you consider that $1400, under the first scenario, would have to cover food and housing, not to mention all the extras associated with kids (clothes, shoes, etc), it’s easy to imagine that it wouldn’t stretch all that far.

For more information or to schedule an appointment with one of our attorneys, give our office a call at 757-425-5200.