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If a marriage is on the rocks, what can be done to protect yourself before a legal separation or divorce?

San Francisco, CA |

Details: Spouse just left to parents with two children out of the blue. Because of the abnormality of this event, I'm weary about what possibly could come next. Not worried about assets, because foreclosure is taking that away. If the worst case scenario(divorce) were to happen, I could see spouse being influenced to come after alimony. With the economy playing a major role in loss of annual income,(less than 3k a mo. net). Its a struggle just to survive single. I'm thinking being the male, and the spouse using the children as pawns, it would be easy for the courts to force contributions to non-contributing spouse. The child support issue, it seems one in my shoes would have to gain custody, just to keep it fair. As in, if we are done, just walk away and I will too. Please advise thx

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Attorney answers 3

Best Answer

I am reading this as you are the working husband and she is stay at home wife (since you said non-contributing). If you file for joint legal custody, you may still have to pay child support based on her lack of income and based on who has more physical custody time (who kids generally live with). Courts like stability for the children so if she has been watching and caring for them at home since birth then a court would likely give her more physical time with the kids. When courts do child support and spousal support they use a formula to determine guideline amount. Since you make less than 3k net, it is unlikely that you will have to pay more than the guideline amount unless there are additional hardships due to medical issues for the children or your spouse, etc.

You can come to an agreement on how much spousal support you would pay, and she can even choose to waive it completely if it will not result in the state paying her bills. If you have a cordial (as much as possible) divorce then you may be able to reach an agreement for temporary support - pay for a number of months while she looks for a job and then only pay the child support which would also potentially go down based on her income. Keep in mind that if she works, there will be daycare costs and depending on the age of the kids she could be working just to cover daycare bills. The daycare cost are also factored in to the formula for child/spousal support.
Talk to a lawyer for more detailed advice on your exact situation.

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents. My firm is All for the Family Legal Clinic, Inc. a nonprofit public benefit corporation that charges on a sliding scale based on income and family size. For a consultation contact us 510-999-7732 or at our website


I'm sorry that you're going through this. My suggestion: hire a lawyer who can advise you as to how to proceed. What you're asking is tantamount to legal advice and would require a comprehensive consultation with a family law lawyer.


If your wife left due to the foreclosure, and not due to relationship problems, keep the peace with her to try to preserve your marriage so that you can seek an apartment rental with her to enable you to live together again. If your wife left due to relationship problems, find a marriage counselor to assist you and your wife in overcoming the relationship problems. If your wife seeks a divorce, understand that you will be treated by the Court the way it treats other husbands in similar situations. If your wife was the primary parent, she will likely receive primary child custody, and you will likely have to pay Child Support. If your earnings are significantly greater than your wife's, she will likely get a Spousal Support award. You would be best represented by an experienced Family Law Attorney in Divorce proceedings.

Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.