Women's Rights in a Modern Divorce [2021] — Online Divorce
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Women's Rights in a Modern Divorce

Divorce specialist Jamie Kurtz

Jamie Kurtz has been a practicing divorce lawyer since 2008. She received her Juris Doctorate from Southwestern Law School in Los Angeles in 2007. Ms. Kurtz was selected to Rising Stars for 2013 - 2016, 2019 - 2020, a peer designation awarded only to a select number of accomplished attorneys in each state. She also co-founded a law firm that specializes in uncontested divorce cases.

In today’s world, family law emphasizes the equality of men and women’s rights in a divorce. The outcome of a divorce case is not determined by either party’s gender. Who gets what in a divorce is determined on a case-by-case basis, and either party may receive custody of a child, regardless of the parent’s sex or gender.

All parties to a divorce are awarded equal dignity in the eyes of the law. None of the U.S. states statutory codes highlight the terms "man" and "woman" when it comes to basic rules and regulations of divorce.

Although gender equality has been recognized by family law, most women still feel uncertain about their rights as wives in a divorce case.

This article will consider some factors which seem to still create a gender gap in the divorce process for women, and provide some information as to a wife’s rights in a divorce case, including what a woman should ask for in a divorce settlement.

Filing the Divorce Case

The spouse who files the initial divorce documents to begin the case does not affect either party’s rights in the divorce. It does not matter if the husband files or if the wife files - the court treats each spouse equally in the divorce process.

A Mother’s Rights in a Divorce

There is an outdated perception that when child custody is an issue in a divorce, the court always favors the mother. However, the law does not actually favor either parent when it comes to custody determinations. Instead, the courts usually base custody decisions on what would be in the best interests of the child.

Some factors that the court may examine when making a custody determination include:

  • the child's habitual way of living during the parents' marriage;
  • the child’s adjustment to his or her home, school, and social environment;
  • the child’s relationships with each parent;
  • and the preferences of the parents themselves.

These factors may vary slightly from state to state but are primarily identical.

Historically, mothers have been more likely to be the primary caregivers during the marriage, so the court would take that into account when making custody orders. However, now, courts generally presume that joint custody is in the child’s best interest, and will order that both parents have joint custody of the child.

The court will allocate parental rights and responsibilities on a case-by-case basis, and try to give both parents equal rights in the divorce.

If you are wondering what to ask for in a divorce settlement with children, it is a good idea to research the different factors that your state court looks to in determining child custody. Also keep in mind that the court will want to make sure that the agreement you reach is in the children’s best interests.

Property Division Matters

During a divorce, property may be distributed in two different ways, depending on whether your state uses the "equitable distribution" or "community property" model.

In equitable distribution states, either the husband or wife is entitled to the marital property acquired during the marriage, depending on who earned it and considering many other factors of a particular divorce case.

Thus, the court may consider spousal misconduct, each spouse's health condition, each spouse's earning capacity, education level, and career prospects. In certain cases, the wife can often claim the marital home if she is the primary residential parent.

Other factors that a court may consider in order to protect the legal and financial rights of the wife include considering the wage gap between the spouses, as well as the non-monetary contribution of a homemaker to the welfare of the family.

All states except for Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin follow the principles of equitable distribution.

The community property states follow the rules that all marital assets acquired during the marriage are community property, regardless of the title. Usually, this model implies a 50/50 division of marital property. However, if the spouses decide that they’d like to divide the property differently, they can do so.

Marital VS Separate Property

It is worth noting that in most cases only the property acquired by the spouses during the marriage is subject to division. So, it is important to classify the property as either separate property or community property before you start to divy it up.

Separate property typically includes anything acquired by either party before the marriage, after the date of separation, or by inheritance or gift. On the other hand, marital property is anything that is acquired during the marriage.

Gender does not affect how property is divided, so there is no set rule about what a husband or wife will receive in the divorce settlement.

Entitlement to Alimony

Many spouses misunderstand the rules of alimony or spousal support, and have unrealistic expectations of how much they should receive from the divorce.

The rules regarding alimony vary significantly from state to state, so it is hard to predict whether a wife is entitled to alimony, or how much money she could get in the divorce. In general, alimony is a tool to support the spouse who needs financial assistance due to the divorce, regardless of the spouse’s gender. Alimony is not meant to favor or punish either spouse.

The amount of alimony that is ordered depends on each spouse’s finances, and usually takes into account how the spouses lived during the marriage. Each state has different factors it looks to when determining an amount for alimony, and some states use specific formulas to come up with a support number.

Typically, a woman can be entitled to alimony if she needs assistance maintaining the lifestyle she had during the marriage. A court may award alimony to the wife in the divorce settlement if she lacks sufficient property and cannot support herself after the divorce.

Many states also recognize rehabilitative alimony when getting divorced. It may protect the rights of women who had to take a career break to look after children. Usually, rehabilitative alimony implies periodic payments for a fixed period, purposed to help the spouse with low earning capacity or lack of sufficient professional skills to get an education or training needed to find decent employment and achieve financial stability.


Who decides who gets what in a divorce?

The spouses are typically encouraged to settle all their differences out-of-court, by writing up their settlement agreement, and the judge is likely to approve it in most cases. If the parties are unable to agree, the judge will divide assets at a court proceeding, following either equitable distribution or community property rules, depending on the state's law.

What to ask for in a divorce settlement with children?

In theory, any spouse can ask for sole custody of a child. But if this type of custody does not meet the child's best interests, the spouses will most likely be awarded joint custody. Most states presume that joint custody is in the children’s best interest, and so joint custody is favored.

Is a wife always granted alimony in a divorce?

Gender is not a factor when it comes to paying or receiving spousal support. When making an order for alimony, the court will consider several factors and make determinations on a case-by-case basis.

In general, alimony will be ordered when one spouse cannot support himself or herself after the divorce, and needs financial support from the other spouse in order to maintain the lifestyle that was enjoyed during marriage. Every state has a different way to calculate alimony.


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