Can You Protect Your Income from Your Spouse When Filing for Divorce?

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by | Dec 22, 2021 | Divorce

The act of actually filing for divorce changes the financial relationship between you and your spouse. During marriage, you both have a one hundred percent right to each other’s income and a duty to support each other. Once you file, that changes and your income becomes separate property. As such, you may think you can just cut your spouse off from accessing any of your income. That is true but there are very important limits. The key is to take certain proactive steps that balance the need to protect your income from your spouse to the extent the law allows you to do that without triggering expensive motion practice for spousal and child support, among other things. 

During marriage, income is considered “marital property” and any savings from income is divided between the parties in divorce. Upon filing, income becomes separate property. It is no longer subject to equitable distribution and your spouse has no right to those funds nor do you have any right to your spouse’s income, if any. However, you still have financial support obligations to your spouse and/or child. Generally, if you earn more money than your spouse, you will have to pay spousal support. You may also owe child support if you have children under 21 and are the noncustodial parent. If you and your spouse cannot agree on an amount, either of you can go to court and the judge will order temporary support to be paid until a final support determination is made.

Assuming you have a higher income than your spouse, it can benefit you to start paying a reasonable support award as soon as possible at or just after filing. The best way to accomplish this is to consult an attorney when you are considering divorce. Your lawyer can help determine whether you owe spousal and/or child support and, if you do, what the likely support amount is. In this way, when you file for divorce, you can be ready to offer and pay that amount to your spouse. This shows the court that you are looking to act in good faith. 

The amount you offer should be reasonable based on the New York spousal and child support guidelines. In addition, you should factor in your lifestyle. Under both guidelines, if you earn more than the income cap, the court has the discretion to increase the support award in order to maintain your spouse’s and child’s previous standard of living.

While your spouse no longer has the right to your income once you file for divorce, do not forget about your financial obligations to them as well as your children. An experienced attorney can help you negotiate financial issues and achieve a positive outcome in your case. If you are considering a divorce, contact us to assist you in getting the best result possible.

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