How to Divorce a Spouse that Earns Considerably More Income Than You
Going through a divorce is an emotionally draining process, especially if you’re the dependent spouse in the relationship. There’s a lot of fear and confusion surrounding finances in divorce and being able to afford the process: will I be able to make ends meet without my spouse? Can I even afford to get divorced from them? Fortunately, though you might feel at a disadvantage, there’s a lot you can do to get fair representation even with limited finances.
This article aims to explore all the key details regarding how you can get the best divorce representation when going up against a spouse earning more income. You should also expect answers to some critical questions and challenges that relate to this particular situation.
Key Factors to consider
While every divorce case may be different, for dependent spouses considering divorce from a richer spouse or one with considerably more in assets, the following are some fundamental factors worth considering.
- Finances: If you’re considering divorce, especially as a dependent spouse, you’ll need to set funds aside to ease through the mandatory separation period.
- Separation period: NC law mandates a compulsory one-year separation period before filing for absolute divorce. Unless you or your family are in immediate danger, it isadvisable to leave the matrimonial home until after receiving legal advice regarding your specific situation or else you could risk losing your right to it.
- Accommodation: Will you remain in the matrimonial home while the other spouse seeks alternative accommodation when you decide to separate? Once again, considerations like this are better made under the guidance of a Lawyer.
- Pre and Post Separation Conduct: In North Carolina, the court will put each spouses’ conduct under scrutiny and cruel behavior or illicit sexual behavior can have dire consequences on whether any form of spousal support is granted. If a dependent spouse was involved in adultery or other forms of marital misconduct before or during the separation, this can cause them to lose some or all rights to spousal support. Likewise, marital misconduct on the part of the supporting spouse can result in a larger award to the dependent spouse.
- Potential custody arrangements: If you have underage children in the marriage, you should also consider potential custody arrangements while contemplating divorce as your decisions will also have an effect on their lives.
What kind of spousal support is available in North Carolina?
There are two main types of spousal support backed by North Carolina Law: post separation support and alimony. Post separation support refers to financial support that is granted by the court and paid while the divorce is in progress. You should, however, be aware that any post separation support granted will usually come to an end once the divorce is finalized or whenever a Judge feels it’s no longer necessary.
Alimony on the other hand is granted after the divorce is finalized with the dependent spouse receiving payments from the supporting spouse. If you are interested in receiving alimony, it is very important that you include it in your separation agreement before your divorce is finalized – if not, you will lose all rights that you may have had to receiving it.
In both cases, your ability to receive either alimony or post separation support will depend on the following:
- You must be the dependent spouse and prove an inability to meet your current financial needs.
- The supporting spouse must have the ability to pay.
In addition, spousal support may not be granted if there is evidence of marital misconduct on the part of the dependent spouse. This includes but is not limited to adultery, abuse, or other similar circumstances.
Key steps to take when preparing for divorce as a dependent spouse
If you’re concerned that your supporting spouse would shut you out in terms of finances after discovering you’re interested in a divorce, it’s worth noting this is unlawful in North Carolina. According to NC Law, one of the definitions of marital misconduct is the “willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome”. The following actions are geared towards helping you get fair representation when going up against a spouse with more income who may consequently be able to afford better representation.
- Get a Lawyer: From having an initial consultation to receiving guidance throughout the proceedings, it is essential that you get a lawyer involved as early on as possible to avoid critical mistakes that could have dire consequences on the outcome of the divorce and the spousal support awarded.
- Establish your eligibility: Whether you’re eligible for spousal support or not, it will not be automatically granted and you will need to make a motion for it. As a dependent spouse, you can apply to have court fees waived in North Carolina. You can also make a motion for your reasonable attorney’s fees to be settled by your supporting spouse.
- Plan your finances: Start putting together your financial plan for how you will live after the divorce. This is especially true if you find after speaking with an attorney that it is best for you to leave the marital residence during the mandatory separation period.
- Commence separation period: You’ll need to have been living separately for at least a year before you can file for absolute divorce. You can still file for support or alimony during this time. However, you should also ensure your behavior during the separation period is intact as it will be placed under scrutiny in court.
- Reach an out of court settlement: By reaching an out of court settlement, youshould save on attorney’s fees and other costs. You will also be saving yourself from a potentially lengthy court battle by doing this. If you’re settling out of court, your lawyers should be present to offer guidance and expertise.
Typical concerns when divorcing a wealthier spouse
When it comes to divorce and spousal support, there are many misconceptions and questions to be concerned with. The following are some typical concerns that dependent spouses may have especially in terms of fear of being cut off from funds during the divorce process.
Does the higher earning or supporting spouse always have an advantage over the lower earning or dependent spouse?
While the financial burden for the dependent spouse can be difficult if they cannot garner support for attorneys fees and other divorce related expenses, the supporting spouse does not always have the upper hand. So many factors come into play when arriving at an absolute divorce decision. Issues like behavior and conduct of the spouses during the marriage and separation period, adultery and abuse usually play a vital role in determining an award of spousal support.
How can I hire a lawyer if I don’t earn my own income?
If you’re a dependent spouse in need, courts in North Carolina may award that your reasonable attorney fees be paid by the supporting spouse. However, you must make motion for this as it is not awarded automatically.
I can’t afford to move, can I stay in the marital residence?
You can definitely remain in your marital residence but you should be aware that your spouse could choose to remain there too. If your spouse remains in the marital residence, it would essentially mean that the mandatory one year separation period cannot start. You should attempt to reach an agreement with your spouse about who is going to remain in the marital home (if anyone) during the separation period. As mentioned earlier, never move out of your marital residence before consulting with a divorce attorney.
Divorce is a very stressful experience for those who find themselves in financial need, but arming yourself with the right information and making the right decisions from the onset can prepare you for getting the help you need throughout. If you’re a dependent spouse and are considering divorce from your supporting spouse, make sure you advocate for yourself and your needs. Doing so may mean the difference between making sure you and your children are provided for years or an even more drastic change in your family’s lifestyle.
This is what is confusing about this article. Sometime when it refers to “divorce” it is talking about an absolute divorce which can’t be filed for one year. But other times it uses the word “divorce” and is referring to the divorce process like PSS and alimony which can be filed for right away.
I wouldn’t use the word “never” since there are situations when there is abuse etc where someone needs to leave immediately.
Alienation of affection is a suit against the person you were having an affair with, not the dependent spouse so I don’t think it fits here.
Again this sentence is misleading b/c it makes it seem that you can’t do anything until the 1 year is up.
This is where the word divorce is being used differently than above and makes it confusing.