If one spouse is working, and the other spouse is not, that would usually mean the working spouse is considered the “monied-spouse” – but it depends on the amount that spouse makes. The court generally analyzes the amount the ‘monied-spouse’ makes, how much the attorneys are charging and how much money would be contributed to the less-monied spouse. It does not matter who initiates the divorce, because the statute simply looks at who earns more and by how much – as well as assets and several other factors.
Is a stay-at-home parent automatically favored in custody arrangements in a divorce? Is the other parent who works outside of home at a disadvantage?
To some degree – yes. When determining custody, the court examines many factors, including the availability of a parent to care for the children. Therefore, a parent who works from home or is a stay-home parent will likely be favored. However, there are many more factors that are examined.
Will the working spouse be required to provide the same lifestyle to the stay-at-home parent in a divorce as he or she had during the marriage?
If the stay-home spouse files a claim for spousal maintenance (also known as alimony), the court will analyze what kind of lifestyle the family had prior to the divorce when determining what that alimony looks like. The goal of spousal maintenance is principally to help the less wealthy spouse get back on their feet. If the spouse is young & and can easily find a new job, the court will expect them to become financially independent much sooner than someone who does not have the same opportunities, such as an elder or disabled spouse.
I can’t financially afford for my soon-to-be ex-spouse to continue staying in the home to care for our children. Is there anything I can do to reduce the amount of alimony or spousal support while still providing for my children? Can he or she be required to find work?
I always suggest documenting any efforts of encouraging your soon-to-be ex-spouse to work, especially in a case where the children are going to school. An available option is hiring a vocational expert, which is someone who examines someone’s background, education, work history, skills and more in order to find a job for them – and even to report their opinion to the court regarding what they believe that spouse could be earning. This is sometimes critical in trial, as the unemployed spouse can claim they can’t work, and the working spouse cannot generally opine as to what the unemployed spouse’s potential income would be.
How is the value of what the caretaker spouse provides to the family determined in a divorce when it comes to provision of assets and support matters?
This is a subjective assessment, as there are no objective measures determining the value of a father or mother caring for their children. A Judge would consider many factors, including what kind of parenting was provided to the children, and whether the parent really went above and beyond in their care of them. There are many arguments that can emphasize or diminish the value of the parenting.
Why can it be more challenging for a stay-at-home parent to initiate a divorce? How can someone overcome those challenges?
The actual initiation of a divorce is fairly simple – at least regarding filing the paperwork. What may be difficult is finding a way to afford an attorney. However, there are multiple options available to spouses who do not have enough money at the time they wish to file for divorce. Using a credit card is always an option, but something else an attorney may do is agree to work as a consulting attorney (in which one technically represents oneself but is given guidance from the attorney). When the other spouse hires an attorney, the attorney for the less-monied spouse can ask them if their client (the other spouse) is willing to pay for the retainer fee on one’s behalf. There are also other types of financial arrangements that can be made. New York courts (at least downstate) offer “the office of the self-represented,” where someone with little to no means can go, initiate a divorce, and apply for assignment of counsel. If, for whatever reason, they are not pleased with the assigned counsel, they can apply for award of counsel fees, and if approved, go hire someone else.
My spouse wants a divorce. I’m the stay at home parent. My working spouse controls all of our finances. How will I be able to afford a qualified divorce attorney?
This is very similar to the last question, where we discuss the multiple options a less-monied spouse has in a divorce. Another thing I advise is setting up a consultation with an attorney, whether free or paid, and discussing a payment plan with the attorney at that time.
As a stay-at-home parent facing a divorce, will I receive a fair division of assets and financial support for myself and my children, even if I did not financially contribute to our income?
Unless the court perceives that the spouse was suppressing income intentionally, refusing to work, or a similar situation, the Judge will assess multiple factors and attempt to fairly divide assets and assign spousal support if necessary. Otherwise, the mere fact the one has been a stay-at-home parent plays no role in the distribution of assets.
I’ve been a stay-at-home parent throughout our marriage and we are now divorcing. Will I be able to continue to stay in our home and raise our children?
Sometimes, yes, sometimes no. Part of that analysis is whether the stay-at-home parent will be awarded spousal maintenance. The court examines many factors when determining the living situation, including whether the monied spouse can afford child support, spousal support, continued payment of the house expenses, and their own basic living expenses.
What are a few tips regarding divorce for stay-at-home parents to feel a little bit more empowered when they are initiating a divorce themselves?
It is important for the stay-home spouse to understand what he or she is presumptively entitled to, and to take advantage of the new maintenance laws. That spouse can request interim maintenance, child support and counsel fees for some financial help throughout the process. Always make sure the attorney you are hiring is experienced. For example, if your spouse hired an attorney with 25 years of experience, it is invariably better for you to hire someone with similar experience (as opposed to, say, someone with only 5 years of experience). Additionally, it is better to find an attorney who specializes in family law and divorces, as opposed to someone who does a little bit of everything. A jack of all trades is a master of none, and you want a specialist in the field.
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