If you are divorcing an unemployed spouse, it makes a difference whether his lack of work is voluntarily or involuntary, and a gender bias often exists when the non-working spouse is the husband. Legally, he is entitled to the same considerations as an unemployed wife. However, because many aspects of divorce come down to the opinion of a single judge, this does not always hold true. Some courts view non-working husbands suspiciously, assuming they could work and earn money if they chose to.
According to the United States Census Bureau, mothers comprised 82.6 percent of the nation’s custodial parents in 2008, the last year for which statistics are available. Except for unusual circumstances, an equal percentage of non-custodial fathers were probably obligated to pay child support. When a non-custodial parent is unemployed, courts will usually impute income to him based on several factors, including what he could earn if he worked. This is especially true when he’s unemployed by choice rather than by an inability to find employment or a disability that prevents him from performing any sort of job. Even in cases of involuntary unemployment, the laws in most states set a minimum child support amount a parent must pay. For example, in Massachusetts, a non-custodial parent must pay at least $80 a month. Regardless of whether your husband is working or not, it’s unlikely that you would receive absolutely no child support from him if you are the custodial parent.
If your husband is not working, he may ask the court for alimony as part of your divorce. If, during your marriage, you agreed that he should stay home and care for the house and the children while you worked, courts will take this into consideration. They will likely factor in whether he will continue to be the children’s custodial parent and if it’s appropriate for him to continue to stay home to care for them, for example, in the case of children who are very young or disabled. At the very least, you might have to pay him support while your divorce is pending and for a short time afterward while he takes steps to reenter the workforce or find a job. If he cannot work because of a disability, you might have to pay permanent alimony. Some states, such as New Jersey, are willing to impute income to an intentionally unemployed spouse in alimony situations.
Community Property States
In community property states, both spouses equally own everything purchased or acquired during the marriage. Even if your husband chose not to work and let you earn all the income, he’s usually entitled to half of the marital property you purchased with that income in such states. However, the laws permit judges to stray from an exact 50/50 split in some isolated circumstances. For example, if your husband is unemployed because he is disabled and incapable of working, a court might give him a little more property to compensate for this. If he chooses not to work, the 50/50 law would likely apply.
Equitable Distribution States
Equitable distribution states view marital property differently. In these states, if one spouse holds title to an asset in her own name, it is her property. However, this doesn’t mean the other spouse isn’t entitled to a share of it. Judges divide both jointly owned property and separately owned property in a way that is “equitable.” Equitable does not mean 50/50; in legal terms, it means “fair.” If your husband is unemployed because he’s incapable of working, he is likely to receive more property just as he would in a community property state. However, absent circumstances such as this, equitable distribution states usually award more marital property to the higher wage-earner. If your husband has been deliberately unemployed for a length of time and you purchased most of the marital property, you can probably expect to receive more than 50 percent of it in a divorce.
References & Resources
- Divorcenet.com: Imputing Income for Child Support
- Law Offices of Michael Kelly: California Spousal Support
- Divorcenet.com: Marriage Leading to Voluntary Unemployment
- Moore Family Law: How Role Reversal Affects Divorce, Custody and Spousal Support
- Richard C. Klein: Gender Neutral Alimony – The Effect on Men of Receiving Same
- FreeAdvice: Property Division in Divorce – Community Property vs. Equitable Distribution
- United States Census Bureau: Custodial Mothers and Fathers and Their Child Support (PDF)
- The Massachusetts Court System: Child Support Guidelines