While the language of American divorce laws is gender-neutral, the law directs courts to take into consideration the financial needs of the dependent spouse, frequently the wife, as well as marital misconduct of the husband in states that permit fault divorces. If you are facing the prospect of divorce, you’ll need to acquire a crash course in how the law may affect your situation to best protect your interests in this difficult time.
Geography
Separation and divorce laws are set by each state legislature, so your divorce will be governed by the state in which you file for divorce, most likely the state in which you currently reside. You can find your state’s divorce laws online, usually as part of a family law section of the state’s legislative reference office. Look for specifics pertinent to your situation, such as whether your state’s divorce law sets guidelines for judges to consider in terms of spousal support, property division and child support, particularly if your husband was the primary breadwinner and you have children.
Features
In California and nine other community property states, according to Family Law Quarterly, marital property generally will be divided 50-50. Other states operate on the principal of “equitable distribution,” based on what the court deems fair, with no rule for an even split or other mathematical formula, writes former divorce lawyer Stacy Schneider in “He Had It Coming: How to Outsmart Your Husband and Win Your Divorce.” The judge can look at the length of the marriage, the earning capacity of the husband and wife, health needs, and the couple’s standard of living in determining the division of property.
Considerations
While most state divorce laws permit spousal support, the amount of support judges award is tough to predict, Schneider notes. The court can order your spouse to pay permanent alimony, received for the rest of your life or until you remarry; temporary alimony, to get you on your feet again; or rehabilitative alimony, to help you if you have lower earning capacity or less employability than your spouse. Divorce laws instruct judges to award alimony based on a marriage’s length, the length of separation before divorce, the parties’ ages and other factors. A woman may benefit from support if her husband was the main earner or, in a role reversal, be forced to pay alimony to her husband.
Misconceptions
Some women operate under the misconception that mothers almost always receive custody of the children. In the eyes of the law, each parent has an equal right to the custody of the child when they separate, notes the Cornell Legal Information Institute. The court will rule in what it sees as the best interests of the child, which may not favor the mother.
Warning
If you live in an equitable distribution state, do not expect a substantial payout for a short-lived marriage, Schneider writes. A marriage of one to three years will be considered short, and in some states, five, seven or even 10 years also constitutes a short marriage. Judges usually won’t award much to a wife who hasn’t been married long enough to contribute to the growth of marital assets.
References
- Family Law Quarterly: Chart 4: Grounds for Divorce and Residency Requirements
- Family Law Quarterly: Chart 5: Property Division
- "He Had It Coming: How to Outsmart Your Husband and Win Your Divorce"; Stacy Schneider; 2008
- Cornell University Law School Legal Information Institute: Child Custody
- Cornell University Law School Legal Information Institute: Divorce: Alimony
