What Non-Working Spouse is Entitled To in Divorce? Rights & How Courts Calculate Support, State-by-State
Non-working spouses are entitled to spousal support (alimony), equitable division of marital property including retirement accounts and pensions, and child support eligibility. Courts determine entitlements based on marriage length, standard of living during marriage, earning capacity, age, health, and contributions to the household.
What Is a Non-Working Spouse Entitled To?
In community property states like Texas, marital property gets divided 50/50 by default, meaning non-working spouses receive half of assets acquired during marriage. In equitable distribution states like Minnesota, marital assets are divided fairly but not always equally.
Spousal support helps non-working spouses maintain a comparable standard of living after divorce or achieve financial independence. Colorado judges consider each party’s gross income, which may be zero for a non-working spouse, when deciding support amounts.
Retirement accounts and pensions accumulated during marriage are marital property that courts divide through a Qualified Domestic Relations Order (QDRO). A QDRO allows non-working spouses to receive their portion of retirement benefits without early withdrawal penalties.
How Do Courts Calculate Spousal Support?
When deciding spousal support, judges consider each party’s gross income, standard of living established during marriage, length of the marriage, earning capacity of each spouse, age and health, contributions to the marriage (including homemaking), and future financial needs.
Colorado has a formula to determine spousal support amounts, though judges retain discretion to order payments above or below guidelines based on unique circumstances. Most states use advisory formulas rather than mandatory calculations.
Rehabilitative alimony helps spouses become self-supporting through education or training, while reimbursement alimony compensates spouses who invested in their partner’s education or career during marriage.
Marriage duration significantly impacts support:
- Texas requires marriages lasting at least 10 years for spousal maintenance eligibility in most cases
- Marriages lasting 10-20 years may receive support for 5 years, 20-30 years for 7 years, and 30+ years for 10 years maximum in Texas
- California courts determine support length by considering how long it takes for the supported spouse to become self-supporting
State-Specific Spousal Support Laws
Community Property States
Nine states follow community property laws: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Community property traditionally means everything gets split equally at 50/50, though some states like Washington allow judges to divide property equitably rather than equally.
In community property states, both spouses are equal partners in the marriage, with all income and assets obtained during marriage considered jointly owned.
Equitable Distribution States
The remaining 41 states plus Washington D.C. use equitable distribution, where judges divide marital property fairly based on specific circumstances. A New York court may award a larger share of assets to a stay-at-home spouse after a 20+ year marriage to help them regain financial independence.
Equitable distribution states specifically consider contributions as a homemaker or to the family unit, recognizing non-financial contributions to marital wealth.
What About Asset Division?
Marital property includes the family home, retirement accounts, investments, businesses, cars, jewelry, and other property obtained during marriage. Separate property (owned before marriage, gifts, inheritances, or assets designated in prenuptial agreements) typically remains with one spouse.
When dividing 401(k) accounts, if one spouse had $50,000 before marriage that grew to $150,000 during marriage, the initial $50,000 remains separate property while the $100,000 growth is marital property subject to division.
Retirement division requires a QDRO recognizing the non-employee spouse’s right to receive a portion of pension or 401(k) benefits. The receiving spouse steps in as owner of their benefit portion and can roll it over to their own IRA to preserve tax-deferred status.
Unlike 401(k)s, IRAs don’t require a QDRO for division—spouses can transfer funds using a “transfer incident to divorce” without triggering taxes or penalties.
How Long Does Support Last?
Courts typically award temporary maintenance for a set period during which the non-working spouse is expected to find employment or further their education with the goal of future self-sufficiency.
Wisconsin courts may order temporary support (during divorce proceedings), permanent support (in the final decree), lump-sum support, or reimbursement support.
Texas spousal maintenance terminates when the recipient remarries, either spouse dies, the recipient cohabits with a romantic partner, or the court-ordered duration expires.
Tax Implications of Spousal Support
Beginning January 1, 2019, alimony payments are not tax-deductible for the paying spouse and not taxable income for the receiving spouse for divorces finalized after December 31, 2018.
Divorces finalized before December 31, 2018 retain the old tax rules unless modified with specific language adopting the new treatment. The 2019 Tax Cuts and Jobs Act eliminated a 75-year-old tax deduction for spousal support.
This change affects alimony negotiations since paying spouses no longer receive tax benefits, potentially leading to smaller support payment offers.
What Factors Do Courts Consider?
Beyond marriage length and income disparity, courts evaluate:
Standard of Living: Courts consider the type of house, car ownership, vacation frequency, and credit card usage to determine the lifestyle maintained during marriage.
Earning Capacity: Judges examine each person’s skills, education, job market prospects for those skills, and time and cost needed to gain additional skills or education.
Age and Health: If one spouse is older, disabled, or out of the workforce for many years, courts are more likely to order longer-term support.
Contributions to Marriage: Courts recognize non-working spouses who put career goals on hold or left the workforce to raise children and manage households as having contributed to the working spouse’s career success.
Family Violence: In Texas, conviction or deferred adjudication for family violence against the other spouse or their child within two years before filing makes spousal maintenance more likely regardless of marriage length.
Child Support Considerations
Child support serves a different purpose than alimony—it’s the child’s right while alimony provides financial assistance to the ex-spouse. Both can provide income for non-working parents after divorce.
Child support and spousal support are distinct legal concepts, with child support specifically benefiting children while spousal support provides economic assistance to the lower-earning spouse.
How Can I Protect My Rights?
Non-working spouses should gather financial records including bank statements, retirement accounts, property deeds, and document contributions made during marriage to help courts understand their role in building marital assets.
Waiting to seek a QDRO creates risks: if the employee spouse retires, retroactively clawing back benefits becomes difficult, and if they die, pre-retirement death benefits may be lost to the non-employee spouse.
After divorce, participants should update beneficiary designations since courts see numerous cases where ex-spouses receive unintended death benefits because designations weren’t changed.
Hiding assets during divorce is illegal in all states—courts can impose sanctions (fines) and award part or all hidden assets to the other spouse as punishment.
What If My Spouse Hides Assets?
Some states like South Carolina consider marital misconduct such as dissipation of assets relevant if it affected the economic circumstances of the parties. A spouse caught hiding or fraudulently transferring marital assets may receive a smaller percentage of the couple’s estate.
Courts require full financial disclosures from both spouses. In Colorado, divorcing spouses must make complete financial disclosures and divide all property and assets accumulated during marriage fairly and equitably.
Enforcement of Support Payments
Texas spousal maintenance can be enforced by filing a motion to enforce (which may include contempt), asking courts to reduce the amount owed to a money judgment, or getting a QDRO.
Courts usually direct the obligor’s employer to withhold support amounts and send them directly to the spouse awarded maintenance.
What Happens Next?
After divorce is filed, judges only make decisions on spousal support after the division of marital property in states like Colorado. Parties can agree about long-term support or ask a judge to decide at trial.
If circumstances change after a long-term support order, parties can ask courts to modify the order if both spouses agree or if the party seeking modification can show changed circumstances.
Consulting with a family law attorney licensed in your state provides guidance on applicable laws, asset valuation, property settlement negotiations, and protecting your legal rights throughout the divorce process.
Frequently Asked Questions
Q: What is a non-working spouse entitled to in a divorce?
A: Non-working spouses may receive spousal support (alimony), a fair share of marital property including retirement accounts and investments, and eligibility for child support if children are involved. Entitlements depend on state law, marriage length, and individual circumstances.
Q: How is spousal support calculated for non-working spouses?
A: Courts consider gross income (which may be zero for non-working spouses), marriage length, standard of living during marriage, earning capacity, age, health, and contributions to the household. Texas caps spousal maintenance at the lesser of $5,000 per month or 20% of the paying spouse’s average monthly gross income.
Q: Does it matter how long we were married?
A: Marriage length significantly affects entitlements—Texas requires at least 10 years for most spousal maintenance cases. Longer marriages often lead to longer or even permanent support while short marriages may result in little or no spousal support.
Q: Can I get a portion of retirement accounts and pensions?
A: Yes, retirement accounts and pensions accumulated during marriage are marital property divided through a Qualified Domestic Relations Order (QDRO). A QDRO recognizes your right as an alternate payee to receive a portion of your spouse’s retirement benefits.
Q: What if my spouse hides assets or income?
A: Hiding assets is illegal—courts can impose fines and award part or all hidden assets to you as punishment. Spouses caught fraudulently transferring marital assets may receive a smaller percentage of marital property.
Q: How do I enforce spousal support if my spouse refuses to pay?
A: You can file a motion to enforce (which may include contempt charges), ask courts to reduce owed amounts to money judgments, or obtain a QDRO. Courts typically order employers to withhold support payments directly from wages.
Q: Are spousal support payments tax-deductible?
A: For divorces finalized after December 31, 2018, spousal support is not tax-deductible for payers and not taxable income for recipients. Divorces finalized before this date retain old tax rules unless modified with language adopting new treatment.
Disclaimer: This information is for educational purposes only and does not constitute legal advice. Spousal support and asset division laws vary significantly by state and depend on individual circumstances. Consult with a family law attorney licensed in your state for advice specific to your situation. All information is based on current laws and may change.
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About the Author
Sarah Klein, JD, is a former family law attorney with over a decade of courtroom and mediation experience. She has represented clients in divorce, custody cases, adoption, Alimony, and domestic violence cases across multiple U.S. jurisdictions.
At All About Lawyer, Sarah now uses her deep legal background to create easy-to-understand guides that help families navigate the legal system with clarity and confidence.
Every article is based on her real-world legal experience and reviewed to reflect current laws.
Read more about Sarah