The prospect of a divorce for a stay-at-home parent can be overwhelming, raising questions like, “How do I get a job because I have lost my skills being out of the workforce for so long?” to “If I obtain physical custody of the children, can I remain in the marital home?” Clearly, divorce will be life-changing for these parents. This blog covers protections and rights of stay-at-home parents in divorce cases.
First, and perhaps frightening for the stay-at-home parent, is that there is a presumption of an equal division of property. This includes what you brought into the marriage and acquired during the marriage until the time of filing for divorce. However, the court can deviate for any reason to make the divorce just and reasonable. One argument for an unequal division the disproportionate incomes between the primary income-earner makes versus what the stay-at-home will make when returning to the workforce, as presumably an entry-level employee. The courts have wide discretion to divide assets and could make a division even 90% to one spouse and 10% to the other if the evidence supports the same.1
Second, with the right evidentiary showing, the trial court can order rehabilitative maintenance in an amount necessary and for a period of time that the court considers appropriate for up to three (3) years. This rehabilitative maintenance is so the stay-at-home can pay for educational or vocational training to increase their earning power in the workforce. To obtain rehabilitative maintenance, the court must consider: (1) the educational level of each spouse at the time of marriage and at the time the action for divorce is commenced; (2) whether an interruption in the education, training, or employment of a spouse who is seeking maintenance occurred during the marriage as a result of homemaking or child care responsibilities, or both; (3) the earning capacity of each spouse, including educational background, training, employment skills, work experience, and length of presence in or absence from the job market; and (4) the time and expense necessary to acquire sufficient education or training to enable the spouse who is seeking maintenance to find appropriate employment.2 Thus, skilled legal counsel must establish in the evidence how these considerations warrant rehabilitative maintenance. This noted, there is no other alimony available to divorcing spouses in Indiana so this is critical to your case in some cases.
Third, presupposing the stay-at-home parent obtains custody, in making a just and reasonable property division, the trial court can award the custodial parent the marital home to continue to rear their children as that is typically in their best interests. Yet, if the home is too expensive in terms of the mortgage payment or otherwise, the evidence might not allow such an award. This, again, is where good lawyering comes in if you are and have been the stay-at-home parent, have raised the children, and seek custody. You need to show the court how it works financially and is necessary for the children. By statute, the court in making a just and reasonable division of the marital property must consider the economic circumstances of each spouse at the time of the property division, including the desirability of awarding the family residence or right to dwell in the family residence for such periods the court considers just to the spouse having custody of any children.3
For any parent who is a stay-at-home caregiver, there are a number of legal tools to protect your standard of living on divorce, although alimony is not one of the options in Indiana. With skilled domestic counsel, you can have a quality of life after divorce if you develop and put on the evidence the court needs to protect you. This blog was written by attorneys at Ciyou & Dixon, P.C. who handle domestic cases of all types throughout the state. This blog is written to provide general educational information. It is not a solicitation for services or legal advice. It is an advertisement.
- Stetler v. Stetler, 657 N.E.2d 395 (Ind.1995).
- Indiana Code section 31-15-7-2. Spousal maintenance is explained in these two cases: Cannon v. Cannon, 758 N.E.2d 524 (Ind.2001) and Zan v. Zan, 820 N.E.2d 1284 (Ind.Ct.App.2005).
- Indiana Code section 31-15-7-5(3).