Does It Matter When I File For Divorce?

Howard at desk

Does it matter when I file for a divorce?

Oh yes it does and it can affect you, depending on which side of the fence you are standing. Let’s assume for the moment that no one is in physical danger of domestic violence and leaving or seeking divorce is a decision rather than a reaction or forced on you by pain. Let’s also assume for the sake of writing that husband is the primary breadwinner (we all know that is not necessarily the case) and that wife is the homemaker child rearing parent (again, not necessarily the case.)

Husband and wife have been married for 15 years, they got married young, had children after 5 years and now the kids are in school. Husband earns a base of $60,000 with bonuses of $5,000 to $7,500 a year, but he just came out of several years of underemployment or no employment. Debt is high due to the bad years but manageable with sacrifice. Wife is capable with reasonable education but little outside the home employment because of a family decision to raise the children with a mother at home. The children are now school age; not in diapers, preschool or kindergarten.

The relationship has evolved to roommate status; not angry, just grown apart. The tough finances took their toll, differing parenting styles and husband puts in 50 to 60 hours a week plus time at home so both feel absent.

When should husband file?

From a purely tactical situation, Husband should have filed before he got the job. Earnings were in the toilet. Child support would have been modest and spousal support may not have been awarded at all. Once a judgment is entered without spousal support, the judgment cannot be modified to create an obligation of spousal support that did not exist in the Judgment of Dissolution of marriage.

Now that he has a good job, he will face child support and potentially spousal support for a limited duration. The cost of delay to Husband is spousal support.

When should wife file?

Wife should file when his earnings are up for exactly the reasons stated, so she may benefit by spousal support. Wife may be able to seek transitional support (to get an education for employment) or maintenance support to allow her to live (with working) at a level not too disproportionate from that enjoyed during the marriage.
Divorce is complex; probably some of the most complex litigation in court is divorce work, plus it is real, it affects the lives of each party involved and the children.

Timing is important and there are many other factors that come into play, so this little article is by no means exhaustive or conclusive. Seek advice from an attorney.

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