Parental Rights of Breadwinners in Divorce

There have been countless divorce articles focusing on the rights of stay-at-home mothers and fathers and homemakers – we’ve even authored some of them. But dependent spouses are only half of the divorce equation, what about the higher-earning spouses, the breadwinners, what parental rights do they have in a divorce?

So much has been written about dependent spouses and how their contributions as a homemaker are valuable, which they are, but there’s a lot less information about the rights of the spouses who support their families, who work full-time to pay the mortgage, put food on the table, and pay all of the family’s bills.

Southern California is expensive and these days, a large percentage of married couples are in the situation where they both work because they have to. On the rare occasion that a spouse residing in Los Angeles County earns enough money to support the family by themselves, it’s not by accident. Such a spouse has worked hard to get to where they are, to earn enough money so their husband or wife can stay home to manage the family.

Some breadwinners are happy where they’re at. They’re thrilled to financially support their family and they have managed to achieve that coveted “work-life balance,” but that’s the exception, not the norm.

More often than not, the breadwinner spouse works long hours and has sacrificed a lot to pay all of the bills and let their spouse stay home to care for the house or the house and the couple’s children.

Suggested Reading: Does Your Spouse Have an Unfair Advantage?

Often, the sacrifice has led to mountains of guilt, and a deep sense of “missing the kids” that they just can’t shake. It seems...they can never get away from work long enough or often enough to bond with their beloved children as much as they want.

So, what happens when such a spouse is getting a divorce? Will their spouse get full custody of the children? Will they have to pay child support? Will they suffer the consequences because they worked so hard all these years to provide for their families?

Breadwinners Don’t Have to Suffer

While there are many factors that determine how a divorce will turn out, we will say that just because a breadwinner was gone a lot because they were working to provide for their family, it does not necessarily mean they will get the raw end of the deal in their divorce, especially in regards to child custody. But, the outcome does depend on the circumstances, such as:

  • Their income.
  • The dependent spouse’s income.
  • Their work schedule; for example, if the breadwinner is on the road a lot, this can impact child custody.
  • The breadwinner’s wishes for child custody.
  • The best interests of the children.
  • The age of the children.
  • If either parent has a history of domestic violence.
  • If either parent has a history of serious mental illness.
  • If either parent has a history of child neglect.
  • The breadwinner’s ability to pay spousal support.
  • The dependent spouse’s need for spousal support.

Can You Get Joint Custody?

Suppose you have been the breadwinner for years and your spouse has been a stay-at-home mom or dad. Does this mean your spouse will automatically get custody of the kids? While it can definitely go that way if you let it, it doesn’t necessarily have to.

You see, the California family courts have come to the conclusion that it’s better for children to have two loving parents actively engaged in their lives, and often this means a joint custody arrangement is best. There are two types of custody in California: legal custody and physical custody.

Legal custody refers to decision-making responsibilities, such as where the children will attend school, what religion they’ll be raised in, and what medical care they can receive. On the other hand, physical custody refers to how much time the child spends with each parent. So, even if a parent worked full-time and didn’t spend as much time with their children as their spouse, it doesn’t mean they can’t seek joint legal and physical custody.

The problem is that a lot of parents who are breadwinners are used to the way things were. Twenty-five or thirty years ago, the stay-at-home parent, who was usually the mother, almost always got custody of the kids and the father got to see his children on one evening a week and every other weekend. Assuming that’s still how the courts operate, breadwinners can be too quick to agree to a very limited schedule with their kids, handing over custody to their soon-to-be ex-spouse.

What if I Want Joint Custody?

If you are the breadwinner and it’s very important to you to have a 50/50 or near 50/50 joint custody schedule or agreement, then you should try to get your spouse to agree to it. If he or she refuses to enter into such an agreement or if they want to have the children most of the time, a judge will have to decide on the matter. If your request is reasonable and it’s in the best interests of the children, you very well may get your wish.

When deciding if a joint physical custody arrangement is beneficial, the judge will consider a variety of factors, such as your spouse’s wishes, the age of your children, your relationship with your children, any history of domestic violence, and your ability to properly care for your children and meet their needs while they are staying with you. If you truly want joint custody, there’s no reason not to pursue it unless your work schedule makes it impractical.

Note: If a breadwinner is awarded “joint physical custody” of the children, it does not mean that he or she won’t have to pay child support. Even in joint custody cases, usually the higher-earning parent has to pay at least some child support to the lower-earning parent.

Related: 7 Tips for Negotiating a Divorce Settlement