In a marriage, you make all sorts of decisions every single day. At some point, a decision that a lot of married couples make, especially if they have children together, is whether one parent should stay at home to care for the children. It’s not an easy decision, but it’s one that, for one reason or another, a lot of families make.
When it starts looking like a divorce is imminent, though, it’s easy to regret that decision. After all, no job makes your future look even more uncertain, especially in light of the fact that he’ll continue to go on working. What’ll happen to you is less certain. After all, spousal support is one of those areas of law that’s fairly loosey goosey, and child support isn’t overly generous (plus, it stops when your children turn 19 or graduate high school). You’ll receive a portion of the retirement, assuming there is any, but you won’t receive a portion of that until he actually retires. Or, if you’re dividing a 401(k) or IRA, you’ll still face the same early withdrawal penalties as you would’ve when you were married, though we can roll your portion over into an account in your name without penalty.
You’ll get a portion of the bank accounts, but also of the credit card debt. As far as liquid money on hand, when you don’t work, there can be a really difficult period of transition. It’s easy to wonder… Will I have to get a job now?
The answer is both clear – and not so clear. The court can’t FORCE you to get a job. Nobody can force you to. If you don’t want to go back to work, you don’t have to. But, also, if you don’t get as much support as you’d need to support yourself without working, you may have little choice. Without getting a job, I don’t know exactly how to bridge the gap between what you have in support and what you need to support yourself post divorce. (Unless you win the lottery, marry rich, or something else along those lines, which may or may not be all that likely.)
Besides that, too, there can be other factors involved, especially if your case goes to litigation. For the most part, in a case where one party works from home, spousal support is THE issue. The rest of the equitable distribution is more or less a 50/50 split, but spousal support is where the judge (or the parties, if they’re able to reach an agreement outside of court) considers the disparity in income and tries to make sure that both parties can support themselves post divorce.
When we’re talking about spousal support, there are a couple of different factors that go into an analysis:
1. Need and ability to pay
This is a relatively easy one. You have to demonstrate that you have a need, and that he has an ability to pay. Basically, that means that you have more expenses than you can cover on your own, and also that he earns significantly more than you do. In a stay at home mom type scenario, this is probably a pretty easy point to satisfy.
2. The statutory factors
So, obviously, the law matters, too. And the Virginia Code has thirteen specific criteria that we use when we analyze spousal support cases. In case you haven’t checked them out yet, you can find them here:
1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
These factors typically really allow a mom to shine; as you read them, I imagine you feel like you have some good evidence to present on these points. That will serve you well, in the event your case winds up going to court.
3. Duration of the marriage
We also look at duration of the marriage, both in terms of whether you’ll receive support and, if so, for how long.
Obviously, the longer the marriage, the longer his duty of support could possibly be. For a shorter term marriage, there’s probably not the expectation that he’ll support you indefinitely.
What happens when spousal support cases are litigated?
Spousal support is tricky, because there aren’t hard and fast rules. Whether you’ll receive support, how much, and for how long are all things that are up in the air. Though we have a formula we use to calculate support, it’s not binding on our courts. There’s not much that is concrete for us to use.
More and more often, too, I’ve seen attorney use employment experts who come to court to testify about a person’s earning capacity. Even if you’ve been out of the workforce for a period, they’ll analyze you, your job history, education, experience, etc., and determine what kind of jobs you might be qualified to do. Ultimately, they could present to the court what kind of income they believe you are capable of earning and the court can then impute income to you (basically, meaning make you responsible for earning that level of income, whether you choose to get a job or not). That’s rebuttable, but I’ve seen it happen.
Spousal support is tricky. Though no one can make you get a job, the court can make it tricky to NOT get a job. Of course, we’d also look at your physical and mental condition, and any specific arrangements made during the marriage (like, to homeschool, or care for a disabled child) that would make working less feasible for you.
It’s case by case, and each case is unique. It’s important that you get some advice and come up with a custom tailored plan of action. Give our office a call at 757-425-5200 to set one up today.