What is a Non-Working Spouse Entitled to in a Divorce?

what is a nonworking spouse entitled to in a divorce

Many people have questions about their divorce case.

Some of the most common concerns have to do with work, salary, and earnings.

For example, what if one partner worked and the other partner didn’t?

Courts have to figure out what to award to each half of a couple in marital dissolution. They have all sorts of tools and standard practices to do this. If you’re wondering about how this process works, check out some of these things that non-working spouses can be entitled to through divorce proceedings.

The Basics: Splitting Things Up And How That Works in Divorce

First of all, there is the general premise that awards in divorce are based on joint financial accomplishments, the financial position of each party, and what each spouse needs financially.

This is very true in the case of a situation where one spouse worked and the other spouse didn’t. The non-working partner didn’t have a fair chance to build up capital during the term of the marriage – that’s the basic idea, and the courts try to work to make things equitable for both parties after the divorce is finalized.

So, how do courts view property? To a large extent, the court’s view is that anything earned or gained during the marriage is marital property. It has to be split up between the two parties.

However, in addition to marital property, one of the parties may have a responsibility to provide for the daily living needs of another spouse.

As you’ll see, different types of assets get split up, but a non-working spouse might also get other court awards that have more to do with long-term financial support.

Five Things that Non-Working Spouses Might Get

As mentioned, a spouse who has less earning ability than their divorcing partner can get pieces of assets, or the whole asset itself, as well as long-term support. These are some of the items that show up in the ledger that participating spouses splitting up may have questions about.

1. The Couple’s Savings

The general idea between savings is that they get divided 50-50. But this might change based on what other assets the couple has and their history together. Yes, it’s a lump sum, but it exists in the context of other financial realities. If it’s the only asset, and there’s no equity in a home, for example, the savings account may be more closely contested. 

2. The House, and the Boat, and the RV…

In terms of property and joint assets, think about this as being similar to a lump sum of money in a savings account.

The courts will generally take the value of assets, split them into halves, and then adjust them as necessary. There’s a logistical process, sure (you can’t just cut a house in half,) but the calculations will determine the monetary amounts that apply. The couple might not end up selling the house, but the court will help to provide a financial plan that considers the equity as an asset.

So, a spouse might get half of the money that is active equity in the house. If they’re a non-working or unemployed spouse, though, and they don’t get long-term spousal support, they might get more of the asset, especially in the short term, to help with living expenses.

The final result depends on many factors, including:

  • Financial needs
  • Earning potential
  • Children in custody
  • Length of the marriage

It’s also important to note that Georgia, specifically, considers long-term alimony a priority for a non-working spouse or other spouse who is financially dependent on a working spouse or married partner.

3. Stocks, Bonds and Investments

Just because money is sunk into stocks, that doesn’t make it an exception to marital property.

These less liquid assets will be put into the hopper with everything else and distributed accordingly.

The same applies to the other physical assets mentioned above. If there’s a vacation home, that can be factored in, too. If there’s a trailer or portable asset, that goes into the mix along with the less tangible property.

4. “My” 401k: Non-Working Spouses and Retirement Accounts

This is one that a lot of people have questions about.

They might ask why their non-working spouse is going to get a big part of their retirement account that they personally paid into over their working life.

Generally speaking, in the state of Georgia and elsewhere, courts often find that retirement accounts are joint assets, and they are to be divided. You can see from reviewing the website of the federal Internal Revenue Service that a party can get something called a Qualified Domestic Relations Order or QDRO as an order to get money out of a person’s retirement account, in addition to other awards like support or alimony.

There is an exception to this, though, that has to do with the length of the marriage. It’s typically only the portion of the retirement account that was gained during the marriage that is common marital property. So if it was a short marriage, the other divorcing spouse can’t go back and claim everything in the 401(k) as being half theirs.

With this disclaimer noted, it’s important to know that courts treat these personal accounts as marital property if the money went in during the term of the marriage.

5. What About the Kids? Child Support for a Non-Working Spouse

Of course, children have a lot of financial needs.

So, based on a child custody agreement, the non-working spouse may get a lot more money per month or per year.

In many cases, the non-working spouse is a woman who took time off to raise the kids, and the kids are with her. In this sort of traditional scenario, a large amount of child support is common. But there are other kinds of arrangements, too, and the court has to view each case separately according to its unique circumstances.

Are There Any Assets that are Protected?

Some assets are referred to as separate property. These are generally assets that weren’t bought or acquired during the marriage, or in some cases, in some states, inheritance and similar windfalls that are earmarked for a particular spouse.

Alternatives to Court Awards

There are some alternatives to working things out in court for assets and income. One is mediation, where the two spouses can go meet and discuss an agreed settlement that may not be the same as something a court would award.

In Georgia, there is actually court-referred mediation where some couples are required to mediate. It’s generally recommended by experts as a way to set the stage for a more orderly process.

If you have questions about divorce proceedings, turn to the professionals at Edwards Family Law. Our attorneys will be by your side, with the dedication that you want out of a divorce attorney.

Contact us today for a consultation.

Author Bio

Regina Edwards is the Owner and Managing Attorney of Edwards Family Law, an Atlanta family law and estate planning law firm she founded in 2005. With more than 21 years of experience practicing law, she is dedicated to representing clients in a wide range of legal matters, including divorce, child custody, child support, legitimation, wills, trusts, probate, and Medicaid planning.

Regina received her Juris Doctor from the Tulane School of Law and is a member of the State Bar of Georgia and the Atlanta Bar Association. She has received numerous accolades for her work, including being named a Rising Star by Super Lawyers for six years, as well as being named among the Pro Bono All Stars by the Georgia Bar Journal in 2019.

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