What if I make more money than my husband?

Breadwinner wives are becoming the norm more and more often, which is such a great thing to see. More and more women are working outside the home at high paying, powerhouse jobs; more women are executives, CPAs, lawyers, doctors, advisers, analysts, politicians and pretty much everything else than ever before. It’s inspiring to see women in high profile places, and encouraging to know that the future is looking pretty bright for our daughters.

Of course, though, when we start to talk about divorce, people start to think of being the higher wage earner as more of a liability than an asset, because earning more money means that there’s more at stake. Though the law views marriage as a partnership, it’s hard not to feel like certain things are yours, when you know full well that the reason you have your 401(k), your home, and your investments are the direct result of the money you earned and the savvy decisions you made.

First of all, let me tell you that being the higher wage earner is never a liability, even if you’re worried, right this minute, about how much you might have to give up. Sure, there are some things that your husband will receive in the settlement, regardless of whether you negotiate a separation agreement or allow a judge to decide. And that part will probably feel pretty bad, especially if, for the majority (or even all) of the marriage, you were the breadwinner.

It’s normal to feel like the things you earned should belong to you—after all, you’re the one who earned them—regardless of your marital status. But still, even though you won’t get everything and he’ll probably walk away with some thing or other that feels pretty important to you now, it’s awesome that you’re in this position.

For many, many years, women were NOT breadwinners, and didn’t truly have the opportunity to become so until recently. The fact that you’re able to have personal, professional, and financial success is wonderful. Moreover, the fact that you’ve had this success suggests that you’ll continue to be successful—both before and after your final divorce decree is entered. Your husband may get some of what you earned during the marriage, but what you earn post separation, and what you earn after divorce, is yours alone. Many women, whose husbands are the breadwinners, find themselves facing terrible poverty after divorce. Some wonder how they’ll pay for groceries, whether they’ll be qualified for any job ever (especially if they never worked outside the home or pursued a degree), or if they’ll still be able to maintain health insurance as they age. Retirement? So many women just don’t have it.
Consider yourself lucky, in a lot of ways, even if it doesn’t feel that way right this minute. Still, that doesn’t mean that you want to walk into this situation blindfolded, or without knowing a little bit about how divorce works and what you can expect to happen. You want to protect as much of your assets and earnings as possible, and the best way to do that is to gather information up front.

So, when are we separated?

Once you’re separated, you and your husband start earning income separately. At that point, it’s appropriate to open a separate checking account and to start saving up your own, separate, money.
But at what point are you separated? In some states, you have to go to the court and actually file something before you’re legally separated, but that’s not the case in Virginia. In Virginia, in order to be separated, one of you has to make the decision in your mind that the marriage is over. Then, you have to stop cohabitating.

Cohabitation is a fancy legal word that we use to describe living together as husband and wife. Often, husbands and wives continue to live in the same home, even after separation, though that is not always the case. To be separated, you must stop cohabitating, which means that you have to consider the way you behave in front of other people outside of your home and, if you’re living together in the same home, the way you behave inside the home as well.

It’s about stopping the little things, like grocery shopping for each other, cooking for and cleaning up after each other, and doing the laundry for each other. It’s also about outward symbols, like wearing wedding rings, exchanging gifts, and celebrating relationship-based milestones (like anniversaries). You should be acting as though you’re separated, and sharing this information with family and friends. Obviously, it’s a little bit easier if you’re living in separate physical spaces, but that’s not possible for every woman in every situation.

So, you’re separated at the point when you (1) decide to end the marriage (or he decides), and (2) you stop cohabitating.

Will I have to pay him spousal support?

Maybe. Spousal support is designed to be gender neutral, so it could be paid to either spouse where these 3 criteria are met. We talked about the 3 criteria earlier, in great detail, depending on the length of your marriage. For more information, click on the link that corresponds to the number of years you’ve been married: 1-7 years, 8-19 years, 20+ years.

Provided that, on a more careful analysis of the 3 criteria, an award of spousal support is warranted, it is certainly possible that your husband could receive spousal support, just the same as you might if the roles were reversed. Particularly if your husband is disabled or is unable to return to the workforce for some reason, spousal support is a possibility.

If he’s at all capable of working, though, it’s probably pretty likely that a judge would expect him to earn something. It’s not like he can either choose to not work, when he’s otherwise able to do so. Additionally, he can’t be voluntarily “underemployed,” meaning that he can’t just leave his $100,000 job to work at McDonald’s flipping burgers for $25,000 to make sure you have to pay him support. He may threaten to do something like that, but courts are wise to those kinds of antics, after years and years of dealing with scheming spouses.

It’s pretty easy to tell when someone is voluntarily underemployed—they go from a well paying job to a less paying job. We can get records from employers to find out whether he was laid off or whether he quit, which can give us lots of valuable insight into what really happened. There’s a big difference in how it would be treated if it was a layoff, as opposed to how it would look if he left his job voluntarily.
But how do we prove that someone is capable of working, even if he’s not? Even if, historically, he has been consistently in and out of jobs, and you’ve provided the majority of the support? This isn’t an issue we haven’t seen before. Attorneys often hire employment evaluators, or employment experts, to help determine what kind of occupation a particular person is capable of holding. An employment evaluator will look at the education, work history, experience, background, and credentials of a person, before making specific recommendations about what type of job he or she might be suited for, and what kind of income he or she could expect to make. That doesn’t mean, of course, that the person is required to then go out and take one of the jobs the employment evaluator has indicated that they are capable of performing, but it does provide us with an excellent argument in favor of him earning whatever money he is capable of earning.

So, what if you hire an employment evaluator who shows that he’s capable of earning a certain amount of money at a specific job, and he STILL won’t work? Lots of judges will allow us to “impute” income to him. Imputation happens when a judge makes a person responsible for earning a certain amount of money, even if they aren’t actually earning it. It works for people who are voluntarily underemployed and people who choose to remain unemployed. Say that the employment evaluator has indicated that he could earn $50,000 a year, or that he quit his $50,000 a year job to take one that paid him under the table. If you imputed income to him, you’d enter his income as $50,000—even if he’s not currently earning that much. Imputation is a way of making him responsible for earning what he’s capable of earning, regardless of what’s actually happening. Imputation can reduce or eliminate your spousal support obligation, depending on the specific circumstances involved.

Even though spousal support is still a “thing” in Virginia that is sometimes awarded, it’s probably safe to say that spousal support is less popular. There’s a real sense that individual people are responsible for earning whatever they’re capable of earning, so we’re seeing spousal support awarded for shorter periods of time than ever before. If you’re worried that your husband may request spousal support from you, take a deep breath. Talk to your attorney about an employment evaluator.

Do I have to pay for his lawyer?

No. In most cases, each party is responsible for his or her own legal fees. Sure, we can ask the judge that he pay your fees, just like he can ask that you pay his, but unless you’ve signed something that says you’ll pay (or you’ve already whipped out your credit card and paid his retainer for him), you probably won’t have to pay his legal fees. Judges don’t really award legal fees all that often. Instead, judges tend to believe that each party is responsible for selecting an attorney who is within his or her means, and that they are responsible for the costs of the case they’ve mounted.

When we see judges award attorney’s fees, it’s usually because of some kind of serious misbehavior on the part of one party. By “misbehavior,” I don’t mean that the judge would award them because you or he were “mean” or said rude things to each other. Judges don’t care what has happened between the two of you, unless you’ve done something that has undermined the case, or made it more difficult to proceed—thus unfairly raising the cost for the other party. Things like not responding to discovery requests and deliberately violating a court order can sometimes result in an award of attorney’s fees to an aggrieved party. But don’t hold your breath—it doesn’t happen that often, and it’s usually for pretty egregious behavior. Still, attorneys often include provisions asking for attorney’s fees, just in case it happens to work out. (After all, if you don’t ask, the judge can’t award it!) But, no, you won’t be responsible for his attorney’s fees.

Can I keep custody the kids? He can’t afford to!

Custody is complicated, and based on an analysis of a number of factors. If a court makes a custody determination, it will focus on the statutory custody factors. If you suspect that you may be facing a custody cases, you should make sure you’ve read them and understand them, because your argument for custody should center around these 10 all important factors.

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

In litigated custody cases, we’re seeing a trend towards shared custody. It’s not really a question of one parent losing and the other parent winning, at least when it comes to custody. More and more often, we’re seeing a shared custody arrangement awarded by the judge, because of the belief that the child will be best benefitted by access to BOTH parents. What does shared custody mean? For more information, click here, to read our article on the Vocabulary of Custody Cases.

Most cases aren’t litigated, though. In fact, most custody cases are settled with an agreement. If you and your husband agree, you can negotiate any type of custody arrangement that works for you. In most cases, where there’s no big fight over custody, mom winds up with custody anyway because that’s pretty much what has already happened. I don’t know you or more about your case, but I’d say chances are good you’ll get custody if he hasn’t indicated that he’s prepared to fight over it.

Will I have to pay him child support? What if I have the kids more?

Child support is awarded based on a formula that takes into account how much money you both earn, whether either of you is paying support for any other children, how much you’re paying in health insurance for the children, and how much you’re paying for work related child care.

It’s all based on a formula, so it is theoretically possible that there could be no child support, because your incomes cancel each other out, or that a parent who has LESS time with the child could receive spousal support. It’s difficult to say without knowing more about your unique situation, because it’s all about how the numbers work out. In most cases, the parent who has the child(ren) the most will receive child support.

For more information about what can happen if you earn more than your husband and to put a plan in place to help protect your assets as much as possible, give our office a call at (757) 425-5200.

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