What are the Rights of an Unemployed Wife in a Divorce?

By Larissa Bodniowycz, J.D.

What are the Rights of an Unemployed Wife in a Divorce?

By Larissa Bodniowycz, J.D.

If you are an unemployed wife facing a divorce, your state's divorce laws, the judge presiding over your case, and whether there is a prenuptial agreement in place will have the greatest influence on the outcome of a contested divorce. Even if you and your former spouse will be filing for an uncontested divorce, understanding how a contested divorce plays out will help you know what to ask for.

Woman sitting across the desk from a suited man

Judge's Role and Varying Laws Among States

The judge will consider a variety of factors when deciding whether to award you spousal support, including your reasons for being unemployed, the length of the marriage, your employability, and which spouse will maintain custody if you have children. Generally, a court will try to achieve the most equitable result possible when deciding the terms of a divorce. Essentially, the court will try to apply principles of fairness to your present situation. If one spouse is unemployed and the other spouse has been the primary source of income, for example, a judge will not leave the unemployed spouse with no means to provide for herself or her children because that would be unequitable.

Whether you live in a community property or equitable distribution state will affect your rights upon divorce. As of 2019, there are nine community property states: California, Louisiana, Texas, Washington, Idaho, Arizona, Nevada, New Mexico, and Wisconsin. In these states, most of the property that was acquired during the marriage, including wages for the working spouse, will be considered community property and divided equally between the spouses.

All other states are “equitable distribution" states. In these states, the court will divide marital property between the two spouses based upon principles of fairness and equity. The result is not always a 50/50 split. The court will consider factors including the income history of each spouse, future potential earning power, and the value of an unemployed spouse staying at home and raising any children.

Rights During and After the Divorce Proceedings

Typically, the court will try to preserve the status quo while the divorce is pending. The court will likely require the working spouse to continue paying bills during this time. The court may also issue an order requiring the working spouse to pay the unemployed spouse temporary support for any necessary expenses.

At the termination of the divorce proceedings, the judge will likely award you some form of spousal support in the divorce. The support could be temporary or permanent. Temporary financial support is designed to give you time to bolster your job skills and find employment. Permanent alimony continues until you marry someone else, you pass away, or your former spouse passes away.

In deciding whether to grant temporary or permanent support, the judge will consider the reasons why you are unemployed, as well as your future earning potential and ability to work. You are more likely to receive permanent support if you have minimal work experience and have always been a stay-at-home-mother. Similarly, the longer you have been married and the older you are, the more likely a judge will grant you long-term or permanent alimony.

If you have children and get custody following the divorce, the judge will also likely grant you child support in addition to alimony. This child support will last until the children are at least 18 and ensure you can provide food, shelter, medical care, and other necessities.

Prenuptial Agreements

A prenuptial agreement will affect your rights in a divorce. As long as the agreement was properly entered into and is otherwise valid, it may dictate what you can receive. For example, the agreement may limit or waive any right to spousal support. Child support cannot be waived in a prenuptial agreement.

If the agreement did not comply with state requirements or is invalid, you can argue that it should be set aside. Some states are more inclined to set aside a prenuptial agreement than others. A family law attorney can help you analyze whether there is an argument for setting aside the agreement.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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