BRINGING IT HOME: What to do when one party in a divorce is a stay-at-home parent

Listen to this article

One statement family lawyers hear all-too frequently is, “I Googled the law and I know this is a 50-50 state!”

By that they could mean almost anything: 50-50 property division, support payments, custody and placement? No matter what they are referencing, of course, Wisconsin is not a “50-50 state.”

However, the law weighs heavily in favor of substantial periods of placement with each parent and, at least at the outset of a long-term marriage, favors some income sharing through child support, maintenance, or a combination of the two. The interaction of income, support, and child placement may act as both motivation or an obstacle in resolving divorce matters.

Perhaps the circumstances when these issues cause the most difficulty are in divorce cases which one parent is a stay-at-home-parent and the other parent is a high-income earner. In this situation, the parents are not compelled by financial necessity to make immediate changes such as requiring both parents to obtain paid employment, but there are many reasons that topic must be dealt with early on in legal representation rather than delayed.

Although we are seeing “non-traditional” marital arrangements with a father who stays home to provide care for the children while the mother is the high-income earner (and we see same-sex couples in similar situations), it remains true that the majority of full time stay-at-home-parents are women. Often by the time they (or their spouse) land in our office, they have been out of the paid work force for several years, especially if there are multiple children. Many of the stay-at-home parents, or SAHPs for short, whom we meet have put all of their time and energy into their children to the point that their very identity is tied to being a SAHP, and the thought of anything or anybody risking that status becomes overwhelming. This is particularly acute as the average length of marriage for a first-time divorce ranges from 7 to 8 years, just when parties who have children are likely to have young children. Ideally, many SAHPs wish to continue in that role post-divorce and for an indefinite period.

On the flip side, many high-income earners genuinely want to change their lives, their work hours, and their commitment to being much more available to parent their children from day to day.

Many more work places are accommodating such changes if requested. And since Wisconsin is “a 50-50 state,” we should start that equal placement immediately, right?

When faced with representing either side of this equation, my initial advice is the same: Everyone take a deep breath. And that includes the judge! Here’s why: If parties are pressured by someone else’s time table to make immediate, semi-permanent decisions about their lives and their children’s lives, it is almost guaranteed that they will quickly polarize their positions out of fear. What will develop is a high-conflict divorce that is not good for anyone, even the lawyers. Additionally, eyeing a long-term plan rather than short-term positions will benefit everyone. Recognizing that at the beginning of a divorce, most people are overwhelmed with emotions, it’s almost always beneficial to take time for a breather.

When I am representing SAHPs, in most cases I am going to give them some advice that they may not want to hear: They should plan to get back in the paid work force or some schooling or training to ease their way back into the paid work force sooner rather than later. The reasons for this advice are twofold: The first is the obvious benefit in increasing income and access to health insurance; the second is that in all likelihood, barring some significant inadequacy in parenting, the other parent really is going to be awarded substantial periods of placement, perhaps equal, thereby leading to a significant change in both the use of time and the identity of the SAHP.

The need to establish at least a path towards financial self-sufficiency may be particularly acute for women. We can debate the reasons for the statistics all we want (and I don’t want to), but the fact is that on average, women earn less than men. This is particularly exacerbated when a woman is out of the paid work force for an extended period of time. Although they will receive child support for a period and may receive maintenance for a period, those payments will not be permanent. Moreover, such payments depend on another human being maintaining a high level of income, and all sorts of issues, both deliberate and unexpected, can change those payments in an instant.

I talk to my clients very specifically about matters that don’t seem important at the time of a divorce, when the parties are 30 to 35 years old, such as the significance of developing their own social-security earnings history (especially if the divorce will occur before ten years of marriage, which under current law qualifies them to collect on the greater of their own social security or half of their ex-spouse’s). Also, the sooner they join the paid work force, the sooner they obtain experience that can lead to promotions, increased income, more rewarding jobs and retirement benefits.

Just as importantly, there is a very real emotional benefit for a SAHP to develop a plan for success independent of their important role as a parent. Attorneys should have a stable of professionals to which to refer clients, including personal counselors, career advisors, financial advisors and educational advisors. In many cases, local colleges are an excellent (and often free) resource for career advice. Although the goal is always to establish these resources for the personal growth of the client, if litigation becomes necessary, some of the data gathered in this process can be valuable to divorce litigation (e.g., establishing an educational path and timeline towards financial security can establish a reasonable length of a maintenance obligation).

If I am representing high-income earners who wish to commit to a change and become more of a hands-on parent than they might have been in the past, it is important to understand their ability to make that commitment. This is where the patience of the judge must also be emphasized, since the best way for someone to show that he or she is willing and able to make that commitment is to have that person actually make that commitment, and not for a month or two. Parents need to be able to establish the trust of the other parent and the children over more than a few months and, depending on the ages of the children, a ramp-up period to an equal placement schedule may be in everyone’s best interests. Wisconsin law currently does not favor such schedules as a permanent schedule (at the end of a divorce) but they can be readily accommodated in temporary orders as a case continues.

Over the past few years, and most obviously in certain counties, there has been a push to propel divorces through specific, fairly rigid timelines established by the courts rather than families. In many cases, this structure is a helpful way to keep parties (and attorneys) on task. In other cases, such as the SAHP divorce, a short time frame is rather counter-productive and not in children’s best interests. Courts would do well to give parties and counsel space to allow these circumstances to develop in a more intentional way to increase the chances that transitions will be successful on both sides, or to respond when transitions fail to develop as hoped.