My Spouse Filed a Divorce. My Spouse Makes All the Money. What Do I Do?

It’s hard enough being served with divorce papers. Imagine being served with divorce papers when your spouse is the primary income earner in your family.  It can be sudden, and scary, whether you are a stay-at-home mom who has not worked for the past 20 years, or in these modern times a dad who decided to stay with the children while taking some online classes.

I know you have questions racing through your mind. Where will you live? How will you pay for food, utilities, and now, attorney fees?   This is one of the most challenging scenarios we see when couples divorce.  Fortunately, there are a few divorce laws to help with this type of situation.

You Can Receive Income During a Divorce

Your spouse cannot decide to divorce you and then simply stop paying for what was normally paid each month prior to filing the divorce. In fact, they must keep you on the health insurance, auto insurance, and continue to pay the same rent and utilities they paid before they served you with the divorce papers. If they previously gave you an allowance of money, such as is often the case with a stay-at-home parent, they will likely be required to continue to do that as well.

When divorces are filed most attorneys will file a Joint Preliminary Injunction, called a JPI.  A JPI places both spouses on notice to not transfer, encumber, conceal or dispose of community property.   A JPI stops your spouse from taking you off the bank accounts or credit cards.   Bank accounts are community property.  Or at least there is a presumption the money in those accounts belong to both of you.   During a divorce you have an equal right to the money.

Your spouse cannot financially suffocate you just because they filed a divorce.  But you may need a court order to detail exactly how much he will pay.   Or you might need a court order to convince your spouse they need to keep paying the monthly bills.

To get this order your divorce lawyer can file a motion for temporary orders.   A motion is a request.   You would request the spouse continue to pay the bills and continue to give you access to money.   The court will agree because the law does not allow a spouse to cut off the other spouse financially just because a divorce has been filed.

You Can Request Attorney Fees in a Divorce

One of the overlooked issues is the need for money for attorney fees.  Divorce attorneys are not free. If you don’t have access to money or credit cards your attorney can file a request for attorney fees.  Attorneys file what is commonly called a Sargeant motion under such circumstances.  The motion is called that because of the famous case Sargeant v. Sargeant.   In this case, the court found that the wife must be afforded her day in court without destroying her financial position. In this case, the court found that the one spouse, who makes or controls all the money, would have an unfair economic advantage over the other spouse in court.  The earning spouse could hire the most expensive lawyers to bury the other spouse in legal maneuvers.  The court felt this would not be fair.

The Sargeant holding is supported by NRS 123.220, which defines community property as: “all property…acquired after marriage by either husband or wife.”   This would imply any savings or money in investment accounts is equally owned by both spouses.   It does not matter whose name is on the account or which spouse beat the other spouse to the bank.   The money must be shared equally.   The money must be shared equally to pay bills, hire divorce attorneys, etc.

 You Can Stay in Your Home during a Divorce

Who gets the home when the divorce is over is a question for the judge to decide.  And it’s a decision the judge will not make for many months after a divorce is started.  It does not matter whose name is on the title or mortgage.  Those are facts that are relevant to who keeps the home after the divorce is over, not who will live in the home while the divorce is happening.  During the divorce both spouses are allowed to live in the home.  A spouse cannot evict a spouse from the marital home.

While you may feel victorious in being able to remain in the house, don’t celebrate just yet.   Your spouse could file a request with the court for temporary possession of the home.  Under certain facts, a judge may award one spouse “exclusive possession” of the home during the divorce.

Exclusive possession is often used when tempers are too hot to live under the same roof.  To make this decision, courts may look at who is the instigator of the arguing, whose name is on the title, what is the likely long-term outcome of the home, what is the best arrangement for the kids, who will likely have custody and what other living options each spouse has.

Abandonment is another scenario that could get you exclusive possession.   If your spouse has voluntarily left the home and has not returned for several weeks, then you could assume possession of the home.   The spouse voluntarily leaving the home would be a strong argument.  You have a right to feel safe and to not worry about an angry spouse walking through the front door in the middle of the night.  Your spouse voluntarily leaving can be enough for a court to authorize you to change the locks.

In deciding the long-term outcome of the home, the court may look at whether the home is the separate property of one spouse.  A comparison of each of these scenarios is as follows:

The simplest example of separate property home would be a home purchased before marriage, titled in your name and no mortgage.  The simplest example of community property home would be a home purchased during the marriage with both names on the title.  Then you have scenarios where the home was purchased before the marriage and the title changed during the marriage.  Or a home purchased before the marriage but paid off with income earned during the marriage.   Difference facts could make for different outcomes with the home.

During a divorce the court will enforce the status quo.   If necessary, the court will order temporary support and attorney fees.   During a divorce your spouse cannot simply evict you.