This article is the third in a multi-part series on women’s rights in divorce cases. While divorce laws are supposed to apply equally to both spouses, there are issues unique to women in divorce worth considering. It’s essential to have a competent attorney who represents women in divorces and understands their unique experiences in these situations. If you’re wondering, “what are the rights of a wife in a divorce?”, here are critical factors to weigh.
Division of Property
When most people think of dividing property in a divorce, they think both spouses automatically get a 50/50 split of all property. While in many divorces, that’s true, it’s much more complicated than that in most divorces. So, if you are a woman going through a divorce, it can be helpful to know the general issues you will have to face in the division of your property. It is also critical you have an experienced attorney who can advise you on all aspects of property division in divorce and who has litigated the complex issues that women face in property division during divorce.
First, it’s essential to know the types of property dealt with in divorces: marital property, separate property, and hybrid property (part-separate/part-marital property). Marital property is all property acquired during the marriage. Examples include your marital home, joint bank accounts, cars, and jewelry. Separate property is all property acquired before marriage or after separation, acquired by inheritance, third-party gifts, or acquired using other separate property. Hybrid property is where a property is part-separate and part-marital property regardless of the total percentage. Examples include retirement accounts one had before marriage but later contributed to during the marriage, real estate bought before the marriage ultimately used as the family home, or commingling separate and marital funds into the same bank or investment account. Separate property will go to the spouse who owns the property in the divorce. Marital property will be divided between spouses. Hybrid property will be divided, with the share going to the spouse who owns that separate share and the court dividing the marital share.
While it’s possible one spouse can get 100% of the marital share of the property, it is not the norm. Usually, a court divides up marital property or the marital share of the property on a percentage basis, usually equally. But it’s important to note that in many states, marital property is not required to be divided equally, even though that is the usual practice. For example, in divorces with multiple marital or hybrid assets, it is even possible for the marital share of some assets to be divided equally and some to be divided in different percentages depending on the particular asset.
Second, the court will consider several factors when determining how to divide marital property or the marital share of hybrid property. These factors can include the following:
- How was the property acquired?
- How did each spouse contribute monetarily and non-monetarily to the well-being of the family?
- How long was the marriage?
- Who caused the marriage breakdown, or are there any grounds for fault, such as adultery or domestic violence?
- Is the property liquid or non-liquid?
Many women in a divorce are concerned that they will be short-changed in the divorce if their husband is the breadwinner. That’s usually not the case, though. The court will consider a woman’s non-monetary contributions to the family as important factors in dividing property. Examples include:
- Staying home to raise children.
- Maintaining family duties around the house.
- Giving up a career or employment for the family.
If you are a working woman going through a divorce, your monetary contributions will be considered by the court in the division of property no different than that of your spouse in most cases. Either way, everything you contributed to the marriage will likely be considered in dividing property.
Finally, the division of property can be extremely complex. There are many types of monetary and retirement accounts, life insurance issues, real estate and investment properties, and intense calculations of the separate and marital shares of assets. Even couples with limited assets can face difficult challenges in presenting property issues to the court in a divorce. Hiring an experienced divorce attorney is among the most critical things you can do to get the best outcome possible.
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We hope this content helps answer the question, what are the rights of a wife in a divorce? If you are facing a divorce and have to determine the division of property, contact WhitbeckBennett to see how we can help. Our attorneys have represented countless women in divorce cases, and we are here for you in yours.