When you’re getting a divorce, do you have the right to stay in your home? To see your children every day? To have your assets (and debts) divided equally?
The answers to these questions can vary from state to state—and sometimes, they’ll surprise you. Below, family law attorney Val Hemminger explains the divorce process, what to expect, and how to ensure that your rights are protected throughout the process.
Rights to the Marital Home
One of the biggest concerns you may have if your spouse files for divorce is whether you’ll be able to stay in your home.
The short answer is that it depends— you’ll unlikely need to move out immediately. While a divorce is pending, divorce courts are reluctant to force either spouse to take any irrevocable actions like selling their home. Instead, the court will issue what’s called a “provisional order” or interim order that sets forth what will need to happen until the final divorce decree has been issued—in most cases, maintaining the status quo.
Provisional orders can require one or both spouses to continue to pay certain bills, exercise visitation, pay child support or spousal support, or take any other actions necessary to keep things stable. If you’d like to keep the marital home, you may be able to do so—so long as you can afford to refinance the home mortgage into your own name.
A lot of people avoid court altogether and make interim agreements. This is often cheaper, faster, and better for everyone involved, particularly the kids.
Rights to Spousal Support
For decades, spousal support (often called alimony) was commonly awarded in divorces. But the frequency with which spousal support was awarded was largely a product of its time—when many divorcing couples were single-income households. Spousal support is designed to allow low-income or stay-at-home spouses to live independently until they’re able to earn enough to support themselves.
Because the rules and regulations regarding spousal support can vary widely from state to state, there’s no hard-and-fast rule regarding when this support will be awarded. Spousal support is more commonly awarded to:
- Spouses who have put their careers on hold to support the other spouse’s career or to raise a family
- Spouses who have a significantly lower earning capacity than the other spouse
- Spouses who have a low income and are near retirement
- Spouses who have no retirement savings or assets held in their own name
Spousal support isn’t designed to “punish” the paying spouse, nor is it awarded as a result of the paying spouse’s actions (like infidelity). This support can be indefinite or last for a specific period of time (for example, until the spouse receiving support has had an opportunity to attend college or re-train for a career).
Although child custody and child support are often considered package deals, it’s important for them to be considered independently. In other words, a parent can’t withhold visitation from the other parent simply because they’re behind on their child support payments, and paying child support doesn’t entitle a parent to joint physical custody if the trial court has decided differently.
Child support is calculated differently from state to state, though all states consider factors like each spouse’s income, assets, earning potential, and the number of children for whom support must be paid. Some states will end a child support obligation upon the child’s 18th birthday, while others can award support until the child turns 21 or graduates college.
Rights to an Equitable Division of Assets and Debts
A final right that every divorcing person has is the right to an equitable—if not equal—distribution of marital assets and debts. Some states, including California, Arizona, Texas, Washington, and Wisconsin, use a “community property” model, while others subscribe to an “equitable distribution” model.
- In community property states, all assets (and debts) acquired during the marriage are considered “marital property” to be divided in a divorce. Assets acquired before the marriage and held in one person’s name may be awarded to that person.
- Community property states give judges less leeway to deviate from a 50/50 split, although there are some exceptions. Spouses can also decide to divide their property in any way they want. A judge will usually approve this arrangement unless it substantially favors one spouse at the other’s expense.
- In equitable division states, assets and debts acquired during the marriage are divided in an equitable way, or a way that makes the most sense for each individual situation. In these states, assets that are acquired before the marriage or assets one partner acquires during the marriage (like an inheritance) may not be considered marital property to be divided in a divorce.
- In these states, the court may consider a variety of factors—including spousal misconduct, earning capacity, education level, age, and career prospects—when deciding what percentage of the marital estate to award to each spouse.
Because both these models differentiate between “marital property” and “non-marital property,” it can be helpful for you and your soon-to-be-ex-spouse to come to some agreement on what you’ll classify as marital or community property.
Non-marital property can include things like:
- Gifts from family members
- Assets acquired after the date of separation
- Assets acquired before the marriage
- Debts acquired without the other spouse’s knowledge or consent
And in some cases—like lottery winnings—the classification of marital or non-marital property can depend on whether the winning lottery ticket was purchased with marital funds or with some other funds.
Although divorce can be one of the most stressful and tumultuous times of your life, knowing your rights can help you advocate for yourself and ensure that you’re able to achieve the best possible outcome.
About the Author:
Val Hemminger has practiced as a divorce lawyer for twenty-five years plus. She is the mind behind the “Be the BEST Divorce Lawyer Academy,” an online program and coaching developed to instruct other lawyers in optimizing their customer service strategies, business organization, work-life balance, and mindset.
She is the host of the podcast, Be the Best Divorce Lawyer, and she credits her ultimate purpose for her success—transforming the family law industry for the better.
*Disclaimer: The content in this article is only intended to act as a general overview of a legal topic and is not legal advice. It is information-based only. All of the information is prefaced by assuming you live in a “community property” and “no-fault” state, province, country, or territory. This article is written by a Canadian lawyer and has a Canadian perspective. The separation and divorce laws in the United States, Europe, Britain, Australia, and New Zealand are all different. Consult legal professionals in your jurisdiction For legal advice as it pertains to your legal situation – please consult with a family law lawyer in your specific jurisdiction.