Q. My husband and I have been together 23 years and married for nine. I have always made more money than he and I will get a pension. He was out of work for the last five years, and he just started a minimum wage job. Our kids are grown. I’m fed up financially. If i file for divorce, will I be forced to continue to pay to take care of him? We have no assets together. My mother owns the house we live in and my car is in my name only.
— Wife for now
A. You have a lot to think about.
Before we get to the money part, you need to consider your relationship.
“The first decision you have to make is whether your marriage is dead,” said Ken White, a certified matrimonial attorney with Shane and White in Edison. “If your marriage had been a living, breathing thing, are you prepared to declare it dead? If the answer is yes, you should seek a divorce.”
Anticipating that you plan to divorce, White said, you should understand that as the breadwinner, time is your enemy.
“The longer you are married, the greater your financial exposure is,” he said.
For example, a financially-dependent spouse in a marriage for a length of time under 20 years can seek alimony for a period of time equal to the length of the marriage, White said. If it’s more than 20 years, the spouse can seek open durational alimony, he said.
The length of the marriage is typically defined as the time between the date of marriage and the date a complaint for divorce is filed, he said. So if you are married nine years, your husband can seek alimony for nine years, White said. If you hesitate and wait another two years before you file a complaint for divorce, that is up to another two years of alimony.
Similarly, White said, any and all assets amassed during the marriage, regardless of whether they are amassed in your name or his name, are likely subject to equitable distribution. Accordingly, as part of a divorce, those assets will be distributed between you and your husband.
White said absent exceptional circumstances, such assets are typically distributed 50/50 between the two of you.
“While I certainly do not know all the relevant facts of your situation, you have mentioned you have a pension,” White said. “Your husband will be seeking and can expect to receive 50 percent of the benefits amassed in that pension during the course of your marriage.”
So again, every day you delay in filing your complaint for divorce really counts and you will be penalized for hesitating, White said.
On a nine-year marriage with you having 23 years earned into your pension, your husband will likely be seeking approximately 20 percent of your amassed pension benefits, White said, using this formula: (9 / 23) = 39.13% / 2.
“If you are married several more years, that much more of your total pension benefits will have been amassed during the course of your marriage, increasing the share of the total benefits that your husband will be seeking a share of,” he said.
Also, if the car, even if only titled in your name, was obtained during the course of your marriage, your husband has a claim to share in up to 50 percent of the current value of the same, White said.
And if the house is owned by your mother, that is a protected asset that he should not be able to touch, White said.
“Please be reminded that without knowing all the facts and circumstances of your situation I cannot offer you concrete advice,” White said. “Therefore, I strongly recommend that you immediately meet with an experienced family law attorney at your earliest convenience to review all your specific rights and options.”
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