What Are the Legal Rights of Women in Divorce?
By Beverly Bird
Marriage is a binding legal contract. Two people obligate themselves as partners, presumably for life. But marriage doesn’t always last forever -- and when one spouse ends it, he still has certain contractual obligations to the other. The law doesn’t permit men or women to simply walk away from the union without potential responsibility for the other’s welfare.
Some states, such as California, have wiped the word “alimony” from their legislative codes, but that doesn’t mean the concept doesn’t still exist; the name is just different. Also called spousal support or spousal maintenance, in most states you have a right to it if your husband’s income is significantly more than yours or if you need time to get back on your feet after the divorce. Women in long-term marriages are more likely to receive support than those in marriages that last only a few years. Rehabilitative support is most common, ordered for a limited period of time so you can go back to school or otherwise acquire job skills to improve your income. You can ask for support as soon as one of you files for divorce; this is “pendente lite” alimony, intended to last while your divorce is pending, until a judge enters a final order.
If you and your husband purchased a home while you were married, you usually have a right to a portion of its equity, even if you didn’t contribute to mortgage payments. Exceptions might exist if your husband made the down payment with inherited or premarital funds. If you have children and you’re the custodial parent, you can ask the court to award you possession of the home while your divorce is pending. Courts are most likely to order sole possession to avoid uprooting your children by making them move elsewhere -- and if your husband’s presence in the home is causing a hardship. It doesn’t mean you’ll get the entire home when your divorce is final, however. If the home is solely in your husband’s name, you can ask the court to block him from selling it until a judge can decide your share in it.
Even if your husband never made cash contributions to his pension benefits during your marriage, you are usually still entitled to a portion of what accrued between the date of your wedding and the time you break up. Pensions and retirement benefits are marital property, just like your home and other investments. Calculating your share can be a complex equation and is best left to experts, but you do have a right to a percentage of their value.
Most states will not allow you to suffer a disadvantage in divorce proceedings because your husband is able to afford a top attorney and you have no money to retain one of your own. Some jurisdictions will set aside a portion of marital property for liquidation so you can pay a lawyer. Others may order your husband to pay your legal fees as well as his own, if his income is significantly more than yours. When you consult with an attorney, ask about your state’s provisions for such situations.
- Woman’s Divorce: Pendente Lite Relief or Temporary Support
- The Women’s Law Center of Maryland: Legal Rights in Marriage and Divorce in Maryland (PDF)
- DivorceSource.com: Pensions and Divorce – Pensions are Marital Property
- The Modern Woman’s Divorce Guide: Alimony, Spousal Support and Maintenance Explained
- Brian D. Kaschel: Exclusive Possession of Marital Home in a Connecticut Divorce
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.