Divorce is a complex and emotionally charged process, and one of the most critical aspects that couples must navigate during this time is the division of assets and liabilities. When one spouse has been the primary breadwinner while the other has not been working or has had a significantly lower income, clients often ask “What is a non-working spouse entitled to in a divorce?” Many parents decide it is best for the family to have one stay at home parent, but how does this affect asset division? In this blog, we will explore the legal principles and considerations surrounding the rights and entitlements of a non-working spouse in a divorce.
Understanding Community Property vs. Equitable Distribution
In the United States, there are two primary systems for dividing marital property during divorce: community property and equitable distribution. The system applied depends on the state in which the divorce takes place.
- Community Property: In community property states (e.g., California, Texas), marital property is generally divided equally between the spouses. This means that both the working and non-working spouses are entitled to an equal share of the assets acquired during the marriage, regardless of their individual financial contributions. This system ensures stay at home parents still receive an equal share of the assets despite not making money like the other parent.
- Equitable Distribution: In equitable distribution states (e.g., Illinois, Florida), assets are divided fairly but not necessarily equally. The court considers various factors, including the contributions of each spouse, the length of the marriage, and the needs of both parties. In these states, a non-working spouse may receive a portion of the marital assets depending on these various factors. The Illinois statute governing this principle is 750 ILCS 5/503.
Marital Property vs. Separate Property
To determine what a non-working spouse is entitled to in a divorce, it’s crucial to distinguish between marital property and separate property:
- Marital Property: Marital property includes assets and debts acquired during the marriage, regardless of who earned or acquired them. This can encompass real estate, savings, investments, retirement accounts, and even businesses started during the marriage. Generally, both spouses have a claim to marital property.
- Separate Property: Separate property consists of assets and debts acquired before the marriage or received as gifts or inheritance during the marriage. In most cases, separate property is not subject to division in divorce. However, it can become commingled with marital property, making it more complicated to categorize and divide.
Having a well drafted prenuptial agreement can make the differentiation process simpler. Prenups generally include a full disclosure of each party’s financial information. Then, different assets can be labelled as separate property for the purpose of future asset division. To learn more check out “Can You Divorce Without Splitting Assets?”
Spousal Support (Alimony)
A significant concern for non-working spouses is their financial well-being post-divorce. Spousal support, also known as alimony, is designed to address this issue. The court may order the higher-earning spouse to make regular payments to the non-working spouse for a specified duration. The purpose of alimony is to assist the non-working spouse in maintaining a similar standard of living to that enjoyed during the marriage while they adjust to their new life.
The court considers several factors when determining the amount and duration of alimony, including:
- The length of the marriage
- The financial and non-financial contributions of each spouse to the marriage
- The non-working spouse’s ability to support themselves financially
- The standard of living established during the marriage
- Any pre/postnuptial agreements that discuss alimony (not legal in all states)
- Any mediation agreements
Courts have the right to make decisions on alimony payments, however, if you use mediation or a prenuptial agreement to discuss alimony payments, then the court will often agree to your payment plan unless the court finds the agreement unconscionable.
Child Custody and Support
In divorces involving children, child custody and support are significant considerations. Courts prioritize the best interests of the child when making custody and support decisions. Typically, non-working spouses may be awarded primary custody if they are stay at home parents because it is generally in the child’s best interests since they spend the most time with the children. Child support payments, on the other hand, are intended to cover the child’s basic needs and are usually based on the income of both parents.
If one parent is a stay-at-home parent and they receive full or majority custody of the child, then the non-custodial parent will be required to pay child support payments to the custodial parent. Since child support is based on income, you may not receive much in child support if the non-custodial parent was a stay-at-home parent and you may have to pay alimony, but a stay at home parent with custody may receive child support and alimony.
It’s important to note that child support and spousal support are distinct legal concepts, with child support being specifically for the benefit of the child, while spousal support is for the economic support of the non-working or lower-earning spouse. To learn more check out “Why Do I Pay Child Support With 50/50 Custody in Illinois?”
Legal Counsel and Negotiation
Navigating the complexities of divorce, especially when one spouse has not been working, can be challenging. It’s essential for both parties to seek legal counsel to protect their rights and interests. An experienced divorce attorney can provide guidance on the applicable laws in their state and help negotiate a fair settlement that considers the needs of both spouses.
Every situation is unique, so each situation requires specialized care from a professional. If you’re in need of quality legal representation in the central Illinois area, for a case like this or any other, reach out and schedule a consultation with one of KGN Law Firm’s experienced attorneys. We will help you navigate through the complexities of your legal troubles.
If you have questions about retaining a family law lawyer, or any other lawyer, you may want to check out “What Is The Average Retainer Fee For A Family Lawyer?”
Conclusion: What Is a Non-Working Spouse Entitled to in a Divorce?
In a divorce, the entitlements of a non-working spouse are determined by the laws of the state in which the divorce occurs. Understanding the difference between community property and equitable distribution, as well as the distinction between marital and separate property, is crucial. Spousal support (alimony) and child custody and support also play significant roles in addressing the financial needs of the non-working spouse and the well-being of the children involved.
Ultimately, every divorce case is unique, and the outcome depends on a variety of factors. It’s essential for both parties to seek legal representation to ensure their rights and interests are protected throughout the divorce process. With the guidance of experienced legal counsel, divorcing couples can work towards a fair and equitable resolution that respects the contributions of both working and non-working spouses.
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The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.
Disclaimer: This article (What Is a Non-Working Spouse Entitled to in a Divorce?) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information answering the question What Is a Non-Working Spouse Entitled to in a Divorce?
Published by Dustin Koth on July 10, 2024
