In divorce, everything changes, especially the finances. Going from two incomes (to maintain just one household) to one income (maintaining the same household) can be jarring, especially if children are involved. When you add to it the costs of moving (including first and last month’s rent, security deposits, down payments, whatever), replacing the things that he kept, and retaining an experienced divorce attorney to help make sure that your soon to be ex doesn’t pull any fast ones, all on top of your normal day to day living expenses, it’s often a very difficult time.
When you add to it the fact that most women have, in some way or another, cut back their careers to benefit their families, it’s even more stressful. It’s no wonder why so many women, after things don’t work out in the happily ever after department, start wondering: “Can he make me go back to work?”
The short answer is no, he can’t FORCE you to go back to work. He doesn’t really have a whole lot of power to make you do anything that the law doesn’t obligate you to do—and the law doesn’t require that you, or anyone else, for that matter, work.
He may not be able to force you to work, but the circumstances might, depending on how everything works out in your unique case.
What will I get in my divorce?
The way property is divided and support will be awarded depends on your unique circumstances. Obviously, you’re not going to get more in the divorce than you had when you were married; it just doesn’t work that way. Think about it logically for a minute. In divorce, you can only divide the things you already had, so you’ll automatically have less (by about half) than you had during the marriage. This isn’t a personal injury case where it’s possible to get a multi million dollar settlement—unless you were already multi millionaires.
Equitable Distribution: Property division
In your divorce, the property will be divided. In Virginia, we call this equitable distribution. All the things you own will be divided between the two of you. Barring some dramatic circumstances, in all likelihood you can expect something fairly close to a 50/50 split. The question, really, is what 50% is more important to you? If there are assets in a bank account or a big asset that you’ll be selling, you may walk away with cash on hand. If there’s mostly debt, or you’re just dividing and keeping assets, the money may be more or less difficult to get to.
If you have children in common, there will probably be child support. Child support is calculated by a formula that takes into account how much money each of you earn, what type of custody arrangement you have (primary physical custody, shared physical custody, or split physical custody), how much time each parent spends with the child (in a shared custody arrangement), how much support is being paid for the benefit of other children, how much healthcare expenses for the child(ren) cost, and how much you’re paying for work related child care.
Spousal support is designed to provide extra financial support to former spouses who, because of the positive nonmonetary contributions they made to the marriage and the family, have less resources at their disposal post-divorce. So, what does all that mean? Well, to put it simply, while you and your husband were married, you made decisions about your family. You decided that you would stay at home, or cut back, or not work Fridays, or work from home, in order to provide the kind of family situation that the two of you envisioned. You also cooked, cleaned, grocery shopped, ran carpools, helped with homework, took care of the family pets, and so on.
Because of the choices you made as a family, if you were to re-renter the workforce without additional financial support, you’d be at a significant disadvantage. Your husband, on the other hand, would have taken advantage of all the benefit of your earlier decisions, but go on to earn the same income post divorce. Spousal support is the law’s way of equalizing things; he can’t go on to earn the same money after divorce while you suffer, when both of you participated in making the decisions during your marriage.
Whether you’ll receive support and, if so, how much you’ll receive is a question that depends heavily on your unique circumstances.
We’re separated. What happens next?
So, now that you know what you might expect to receive out of your divorce, you’re probably wondering what happens in the meantime. It’s a good question and, in some cases, it can be a pretty tricky time. Some women get in financial hot water pretty fast when they separate from their husbands, because their husbands stop paying any kind of support at all (either child or spousal) until a court orders that support be paid. Let’s talk a little bit about how support gets into place and how long it takes.
A lot of times, when a separation happens, the higher-earning spouse (let’s call him the husband, because in most cases, unfortunately, that’s still true) stops having his paycheck direct deposited into the joint account. If the lesser earning spouse doesn’t have income (or savings) of her own that she can access, she can find herself without access to money very quickly—which makes things like paying the mortgage and hiring an attorney pretty difficult.
If he stops providing any money to support the family, you’re in a tough spot. You have a couple of options, legally at least. If the two of you are cordial and are trying to handle your divorce amicably, you can try to negotiate a separation agreement that handles support right away. That way, as soon as its executed, he will have a support obligation that is immediately payable. Otherwise, you may have to go to court, which means filing for a divorce.
After you’ve filed for divorce, though, you can schedule a pendente lite hearing. Pendente lite is Latin for “while the litigation is pending,” and it’s where you can ask a judge to award you temporary child and spousal support—so that you can pay the bills and keep things going while the divorce is pending. If your husband has left you completely without support, this is a good time to get some ordered, especially if you suspect that your divorce won’t run completely smoothly.
But will I have to get a job?
I know, I know. We’re back to the original question. Now that we’ve discussed what types of support you could receive, and how you might get an award of support in place as early as possible, let’s talk about what you were originally asking. Will you have to go back to work, or start to work more, because of your husband?
The answer is, like I already said, that he definitely can’t MAKE you go back to work. That being said, though, if you don’t have enough money to make ends meet from equitable distribution and support, you may not have a choice. If, for example, the amount of spousal support you’ll receive is (1) smaller than you expected, or (2) for a shorter period of time than you anticipated, and you are afraid that you won’t be able to cover your expenses, you’re going to have to establish a separate form of income. Usually, that means that you’ll have to get some sort of job.
Unless you know something I don’t know (which is totally possible), there aren’t a whole lot of alternatives if what you have coming in is less than what it costs you to run your life. Going back to work may not be something that you planned, but it is definitely one way to help ensure that ends meet at the end of each month.
What if I’m disabled? What if I have a disabled child?
Your case may also present extenuating circumstances that make you unable to return to the workforce. Remember that one of the factors for determining whether or not a person is entitled to receive spousal support requires consideration of the points provide by the Virginia statute. Specifically, the statute requires that consideration be made for “(t)he age and physical and mental condition of the parties and any special circumstances of the family,” and “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.” If your disability, or your child’s disability, would make it impractical or impossible for you to seek employment outside of the home, that’s something that the judge or your attorney would help you address during litigation or negotiations.
Will it help? I can’t make any guarantees. But any information you have about diagnosis or prognosis will be helpful, so you should gather whatever information you can to support your argument that you need more support for a longer period of time based on that disability. At some point, especially if your case goes to court, it may be necessary to involve experts or other people who could come to court to testify about the extent of your or your child’s disability, what is involved in your day to day routine, and what it all means about your ability to work.
It matters, too, what decisions you made during the marriage because of your disability. Did your husband know you were disabled when you got married? Did you work during the marriage? Did you reduce your hours because of your disability? If he knew when you married and allowed your disability to affect how much you worked during the marriage, those facts may work to your advantage. Like anything else, though, it depends on a lot of factors. Still, it’s worth looking into!
What if I’ve been out of the workforce for a really, really long time?
If you’ve read the statutory factors, you know that they also specifically say that the court will take into account “(t)he earning capacity, including the skills, education, and training of the parties and the present employment opportunities for persons possessing such earning capacity,” “(t)he opportunity for, ability of, and 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,” and “(t)he 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.”
The fact that you haven’t worked in a long time matters—as you can see. And it’s certainly something that the judge and your attorney will consider. Does that mean you won’t EVER have to work if you’ve been out of the workforce for twenty years? No. Is it good evidence to help bolster your argument for support? Yes.
With spousal support, nothing is set in stone, so you should take nothing for granted. Keep in mind that, especially if you’re arguing for permanent spousal support, your husband’s attorney may also involve an employment evaluator. We’re seeing employment evaluators in more and more cases these days, because it seems like the courts are shifting away from spousal support and favoring former spouses returning to the workforce—even if they earn little to no additional income. Of course, that’s not to say that we don’t see awards of spousal support, or even that we don’t see awards of permanent spousal support. But it does seem like, more and more often, whether by their personal choice or driven by necessity, more women are returning to the workforce post-divorce.
The evaluator will look at your work history and earning potential and, ultimately, provide a list of jobs in the area that you would be qualified to do, as well as provide how much money you could expect to earn. Do you have to take those jobs? No, but the employment evaluator’s report is often pretty important in court.
So, what happens with that information? Worst case scenario, if you choose not to pursue employment, the amount of money you could reasonably be expected to earn could be imputed to you. When income is imputed, that means that the court makes you responsible for earning that amount of money (even if you don’t actually earn it), and it factors into the formula. If the evaluator says you could earn $50,000 a year, and you choose not to work, the judge can factor $50,000 into the formula, even if you don’t earn anything. If you try to apply for $50,000 a year jobs and don’t get hired, that’s different entirely—but there’s still a risk of the judge imputing something.
As always, the answer is “it depends.” To get an idea of what you could reasonably expect in terms of spousal support, its always best to talk to an attorney. We can help you figure out what a range of spousal support might look like, and discuss your options, both now an din the future, with respect to employment. For more information or to set up an initial consultation, give our office a call at (757) 425-5200.