Stay-at-Home Dads and The Divorce Double Standard

What are the legal rights of stay-at-home Dads during divorce?

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The Double Standard for Stay-at-Home Dads During Divorce:

A friend is going through a divorce, a nasty divorce. He and his wife have been married for a little over 13 years and have two children. His wife works a management position for a large, nationwide retail department store. When their first child was born 7 years ago they agreed that he would stay home and become a full-time father while she continued to work.

At the time this made sense because she earned the larger salary and was more career minded than he. And so, he quit his job, took care of the baby and the second one when she came along. He cooked, cleaned, did the laundry, everything that needed to be done to keep a house “running” while she was out building her career.

They had a perfect arrangement until she met another man. Once that happened and she had thoughts of leaving the marriage she turned on her husband, the stay at home father of her children. She filed for a divorce and had him served with legal documents stating that she wanted all marital assets, to retain ownership of both automobiles, and all interest in the marital home.

She wanted him out of the home with nowhere to go and no money to go on.

In her mind, she had worked and paid for the assets so she should retain the assets. When I spoke to her she was highly upset that someone who had not “worked in years" could expect to walk away from the marriage with anything if he had not earned anything.

She was also of the opinion that he "was a man and should behave like a man." In her mind, she was happy with him keeping the home fires burning while she still wanted him. Once she was ready to discard him she belittled him for expecting the same things a woman who is left after a long-term marriage would expect. 

Why Her Argument is Flawed:

I explained to her that she was in a position that millions of men had been in over the last several decades. She had made an agreement, had essentially entered into a legal contract with her husband. A contract that stated she would provide and take care of him in exchange for him taking care of the home and children.

The desire to move on to a new life with another man didn’t nullify the contract, regardless of how unfair she thought it was of the court to hold her to the agreement she had made with her husband.

How did she respond to the fact that she would, more than likely have to split all marital assets with her husband plus shared custody which will mean paying him child support? And, if a judge sees fit, pay him spousal support. She took a lower salaried position in her company.

Why She Won't Get Away With Willful Underemployment:

She took a large cut in pay thinking she would go to court and be able to argue an inability to pay the state guidelines for child support and a need, on her part for a larger split of the marital assets.

In the legal world of divorce, this is referred to as “willful underemployment.” This is a tactic that is commonly used by the larger earning spouse and due to how common that practice is, the courts have laws and statutes set up to deal with litigants who attempt to pull the wool over their eyes.

A judge, when taking into consideration income will consider your spouse’s earning potential. In other words, if a husband or wife chooses, during the divorce process to quit their job or take a lower paying job a judge can and will base child support payments, alimony payments and the division of marital assets on the resources the spouse already owns AND their last two to three years income tax return.

My advice to anyone thinking about purposefully decreasing their earnings to keep from supporting their offspring or ex-spouse…think again. Especially a higher-earning wife who is divorcing a stay-at-home Dad.