Many people who are getting divorced want to know right off the bat what their rights are and how things will be divvied up. To address those concerns, let’s take a look at marriage rights and a brief reason why and how some of those rights came about.

In the United States, there are many federal rights and protections granted to married couples. They include things like social security and tax benefits, family and medical leave, and even immigration benefits. The list is long and is based on the principal definition of marriage as “an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged.” (Wikipedia) The underlying supports created by the contract of marriage are basically to ensure shared responsibilities for the safety and stability of the husband and wife and any children of the marriage.

Each state also incorporates a set of rules defining specifically what ownership rights there are to property and debts obtained during the marriage, and what expectations are placed around the support of children. Many states also include some guidelines for the support and care of either member of the couple, if one has taken on the role of financial provider during the course of the marriage and the other has primarily been a caregiver in the relationship. These rules are continually being revised and updated to keep up with changes in today’s economy, and facts related to the changing roles taken on by each spouse during marriage.

So, what rights are involved when a husband and wife divorce? Unfortunately, there is not a one-size-fits-all answer. Some of the facts which have to be discovered prior to any determination of rights include:

  • How long was the marriage?
  • What state did the couple primarily reside in?
  • What state do they hold property in?
  • Were there debts and assets belonging to either prior to the marriage?
  • How many children were born during the marriage and how old are they now?
  • Has there been a primary caretaker of the children and how is that defined?
  • Has anyone outside the marriage contributed to the family’s financial support, and was it by an inheritance or loan?
  • What belongings have the couple accrued during the marriage?
  • What debts have the couple incurred that are still pending payment?
  • Was one person the primary breadwinner? Why?
  • What abilities does the other person have to be regularly employed?
  • Does either party have other financial resources available at this time?
  • Has there been any retirement accrued by either party during the marriage?
  • Did either party serve in the military before or during the marriage?

Generally speaking, the answers to the above questions will point to guidelines and statutes in the state where the couple has resided during the marriage. There is a requirement that a couple have resided in a specific state for a period of time prior to filing for a divorce in that state. There is also a requirement that any children have resided in a state for six months prior to any action being filed with regard to custody or child support.

Once the initial assessment has been made regarding the basic facts of the marriage, there are different ways to resolve the issues. It is much like the dissolution of any contract, with several universal ground rules related to the fact that the contract was a marriage. Each person will generally be required to rethink in detail how they can support themselves if they return to the status of a single person. In addition, each person will be required to contribute on an ongoing basis to the care and support of any children.

Most states today have a presumption that both parents are to have parenting time and financial support responsibilities. This presumption is different than the old idea that children belonged with just one parent. It is based upon the changes in earning capacity of both parents and the scientific evidence that shows significant biological bonding patterns occur with both parents. Most courts still have some term that implies the best interest of the children, and only some states make allowances for children to have input into the decision.<

Generally speaking, each person in the marriage has the responsibility to help clean up the debts incurred during the marriage, as well as a right to some kind of equitable division of joint or community assets. Not all states consider marital assets as community property, so it is important to know which state rules are in place in the state where divorce is sought. Some consideration is also made for business ownership during the marriage. The guidelines for business ownership involve identifying specifically who owned the business, how the finances for the business were managed, and what if any assets and/or debts belong solely to the business.

Retirement benefits have some joint consideration when divorce happens. However, it is important to note that retirement benefits accrued before the marriage may not be joint, and retirement benefits from some companies and organizations may include requirements on the length of the marriage or the kind of retirement benefits which were added to the account during the marriage. An example of this is the military retirement program which has a requirement that a couple be married for a certain amount of time and that retirement benefits accrued during active duty may only be available to the spouse who was married to the veteran during that active duty time.

Often, rights at the time of divorce are confused by some who believed that marriage was the contract that would hold all the responsibilities for maintaining safety and financial support for the rest of their life. As people in the United States and other countries have increased their independence from the home town and family-based lifestyle, and developed more mobile life and work patterns, the contract of marriage has taken on different meaning.

What many people once considered rights when a divorce happened are being replaced by both the husband and the wife needing to look at the responsibilities they took on when they entered into the marriage. The equitable and reasonable division of those responsibilities is the actual focus of most divorce proceedings.