Wife Rights During Separation and Divorce: Spousal Support, Exclusive Occupancy, Custody, Domestic Abuse
Wife Rights During Separation and Divorce
Are you a wife? Are you wondering about our “wife rights during separation and divorce”? If so, rest assured that as a wife, you do have rights that are specific to your position in the family as “wife” during separation and divorce.
For example, three wife rights during separation and divorce involve financial support.
During the divorce process, you have the right to receive spousal and child support during the pendency of your divorce and you also have the right to financial assistance with running the household while the divorce process is underway. All is dependent on the financial capability of your spouse and the standard of living you enjoyed during your marriage. This is assuming that your spouse is more financially well off than you are. If you are the main breadwinner in the family, then obviously it is you who will be paying your spouse more than likely, not the other way around.
This post is mostly assuming that you are the wife who is financially dependent on your spouse, or who is at a disadvantage whether financially or otherwise from your spouse.
Another set of wife rights during separation and divorce involve the occupancy of the marital residence during the pendency of the divorce action. Often, during a divorce process, you can get an exclusion order so that the spouse has to move out. Of course, this all depends on the circumstances. Either spouse could assert the right to exclude the other but it does not mean either will get exclusive occupancy. It depends. But if anyone gets it, usually, still to this day, it is the wife who gets it. During the period of exclusion, you would still have the right to receive financial support to aid with things like paying the mortgage and running the household, even if your spouse has to get another living arrangement.
If you are the one to vacate the marital residence without a court order, this could prejudice your rights as far as custody of your children or even as far as being able to move back in while the divorce is pending. If you are gone for 30 days or more without a court order, in many states your spouse can obtain an exclusion order. Does it matter that you moved because of abuse? It could. But be careful about just moving out. Speak with your attorney before you do that.
Exclusive occupancy is usually temporary
Understand that fundamentally, this is a temporary arrangement. Once the divorce is finalized the house could be ordered sold. Or one spouse could buy out the other or some other arrangement could be ordered by the court. Usually, the court is very reluctant to lock people out of their homes since this is a question of “property rights” and its intersection with family law that has all sorts of ethical and legal ramifications. So it is not going to be easy to exclude a spouse unless you can prove your case of abuse.
This will be done in a trial or hearing at some point after you file for exclusive occupancy, except in those rare cases where the court issues a restraining order/exclusive occupancy order at the début of the
hearing divorce proceeding.
Your wife’s rights during separation and divorce with regard to custody of the children will also be determined by the state statute and state laws for the state in which you live. The presumption is that both parents are entitled to share joint custody of the children during the pendency of the divorce and after. But there are extenuating circumstances. During the divorce, the court will appoint certain professionals that could include a GAL (guardian ad litem), custody evaluator, and law guardian. These people, normally, will help the court determine the best custodial arrangement for the kids. Ultimately, your rights will depend on the specific circumstances in your case.
With all that being said, divorce is different from separation and most of this post pertains to wife rights during divorce. If you are separated or separating, you would be well advised to obtain either a separation agreement that is negotiated and agreed to by both you and your spouse or a judgment of separation from the court. The separation agreement is a contract and you and your spouse will agree to the terms – including spousal support, occupancy of the marital home, and perhaps even custody and child support. Note that child support is a statutory matter and there are guidelines that the court uses to determine exactly how much is owed for child support so your agreement can simply reference those guidelines. Guidelines are guidelines, however, and are not written in stone. Note, also, that as a general rule, parties cannot “negotiate” custody and the court would not be bound to any agreement pertaining to custody if there is a dispute.