All property of the husband and wife is considered marital property. This means that even property brought into the marriage by one person becomes marital property that will be split in half in a divorce. However, the court does not have to give each spouse one half of the property.
A wife can claim a husband’s property after the divorce but subject to certain conditions. The conditions which are considered to decide the right of the wife over the husband’s property:
- Wife/Wife’s family Contributed to the Property: If the property in question has been a gift to the husband, the wife or her family lend money to the husband to get that property, or contributed to buy such property, the wife can claim a portion of the property, proportionate to the amount spent on it.
- Husband Acquired The Property After Divorce: If the property in question has been brought or taken possession after the divorce has taken place, and the wife has no contribution towards, then she cannot claim for any right over the property.
- Husband Stopped Paying Alimony: In case the husband is supposed to pay a certain amount at a regular interval as alimony, and he willfully avoids paying it, then even if the husband bought the property after the divorce, the wife can claim over it.
Assets are one of the main reasons for dispute when a couple separates. The country’s lawmakers are considering granting women the right to their husbands’ residential property if they part ways irrespective of whether it was acquired before or after marriage. In the current draft of the proposed amendment, the wife’s share will be decided by the court. However, under the current laws, a woman seeking divorce is not entitled to any share in the husband’s property. The ownership rests with the person who is holding the title. If the property is bought by the husband while the two were together and he holds the title, the wife can make a claim if she can prove her equity in the property. A lot of people buy property with their own money but register it in the name of their wives to benefit from the lower property registration fee for women. In such a case, the wife can continue to retain ownership.
The term “common law” is simply a term used to determine the ownership of marital property (property acquired during marriage). The common law system provides that property acquired by one member of a married couple is owned completely and solely by that person. Of course, if the title or deed to a piece of property is put in the names of both spouses, however, then that property would belong to both spouses. If both spouses’ names are on the title, each owns a one-half interest. When one spouse passes away, their separate property is distributed according to their will or according to probate (in the absence of a will). The distribution of the marital property depends on how the spouses share ownership. If they own property in joint tenancy with the right of survivorship or tenancy by the entirety, the property goes to the surviving spouse. This right is independent of what the deceased spouse’s will says. However, if the property was owned as tenancy in common, then the property can go to someone other than the surviving spouse, per the deceased spouse’s will. Not all property has a title or deed. In this case, generally, whoever paid for the property or received it as a gift owns it.
If the couple divorces or obtains a legal separation, the court will decide how the marital property will be divided. Of course, the couple can enter into an agreement before the marriage, explaining how to distribute the marital property upon divorce. Marital property in community property states are owned by both spouses equally (50/50). This marital property includes earnings, all property bought with those earnings, and all debts accrued during the marriage. Community property begins at the marriage and ends when the couple physically separates with the intention of not continuing the marriage. So, any earnings or debts originating after this time will be separate property. Any assets acquired before the marriage are considered separate property, and are owned only by that original owner. A spouse can, however, transfer the title of any of their separate property to the other spouse (gift) or to the community property (making a spouse an account holder on bank account). Spouses can also comingle their separate property with community property, for example, by adding funds from before the marriage to the community property funds. Spouses may not transfer, alter, or eliminate any whole piece of community property without the other spouse’s permission, but can manage their own half. However, the whole piece includes the other spouse’s one half interests. In other words, that spouse cannot be alienated the one half that belongs to them.
Separate property includes:
- Property owned by just one spouse before the marriage
- Property given to just one spouse before or during the marriage
- Property inherited by just one spouse
Know Your Rights
The law says any investments made in the name of the woman will be a part of her personal wealth in the event of divorce. Earlier, the woman would be the sole beneficiary of such an investment. In fact, any gift received by the woman at the time of marriage and during the time she remains married is her property. This is known as streedhan. Even if the husband and wife both use a gifted asset during the marriage, in the event of a divorce, that asset becomes the wife’s. If the property is registered as the joint property of a soon-to-be-former married couple, the wife would be able to stake a claim at the time of divorce. Based on her contribution to the property, the court will grant her share. In case the property is registered solely in the name of the woman, she will be able to claim it entirely unless the man can prove he contributed to the purchase. To encourage property ownership among women, the government provides them certain incentives. Properties are hence often registered in the name of the woman of the house to save money. The intent of the buyer and the government are not same. Similarly, banks offer women home loans cheaper when compared to their male counterparts. When the court grants a divorce, property will be divided equitably (not always equally) between the two spouses. This is decided under the Equitable Distribution Law. During the divorce both spouses have to tell the court about their income and any debts they owe.
Equitable distribution means fairly divided. When marital property is distributed equitably, it is divided between the two spouses as fairly as the court thinks is possible. Although this does not guarantee that the court will decide the property should be divided equally (50-50), this is usually what happens. There are two different types of property for the purposes of a divorce. Property that the couple bought during the marriage is called marital property. Property that belonged to you before the marriage or was a gift to just you from someone other than your spouse is called separate property.
Marital property can be divided between the two spouses. Marital property includes all property either spouse bought during the marriage. It does not matter whose name is on the title. For example, if a couple bought a home, but only the husband’s name was on the deed, the wife would still be entitled to some of the value of the home if they were to get a divorce.
Separate property is property that one of the spouses owned before the marriage. For example, a bicycle that the wife had owned since before her marriage would be considered separate property. Any inheritance one spouse gets, even during marriage, is separate property. So are personal gifts (unless they came from the other spouse) and payments for personal injuries.
Separate property can become marital property if it is mixed with marital property. For example, if one of the spouses uses money they had before the marriage to buy a house for the couple, that money might become marital property.
The court should consider these things when deciding how to distribute the marital property:
- The income and property of each spouse at the time of the marriage
- How long the marriage lasted
- The age and health of both spouses
- If there are children, whether or not one spouse the custodial parent needs the home or any other marital property while the children are growing up.
- The loss of inheritance and pension benefits
- The effort of a spouse in the household (for example, a homemaker sacrificing her career for her husband’s sake)
In most states, separate property is restricted to:
- property owned by either spouse before the marriage, or obtained by either spouse after the Date of Separation,
- inheritances received by either spouse,
- gifts to either spouse from a third party,
- payments for pain and suffering in personal injury lawsuits, and
- property designated as separate property in an existing pre or post nuptial agreement.
Everything else is usually considered marital property, which is divided differently depending on whether you live in a Community Property or an Equitable Distribution. However, most states are Equitable Distribution States, in which the division of assets is typically much more complicated. In an Equitable Distribution each spouse has a legal claim to a fair and equitable portion of the value of all marital assets, no matter which of them is listed as the legal owner. Note that a fair and equitable portion does not necessarily mean half. Courts consider many factors to determine what constitutes a fair and equitable distribution of marital property.
When The Wife Is A Shareholder In The Property
It often happens that husband and wife purchase a property jointly, but when they are heading towards a divorce, wife holds the right to stay in the property until the divorce is approved. The husband cannot ask her to leave the house as she is the co-owner of the property. The wife can ask for the settlement of her share from the husband before or after the divorce, and the husband is liable to pay her share.
In the case of abandonment, the wife has the right to get the possession of everything that belongs to her. She becomes the sole owner of what she owns, including her jewellery, insurance policy, bonds, Fixed Deposits (FD) or something else. Also, she has the right to get the jewellery that was given by her family and is in the custody of her in-laws, back. In case, if the in-laws do any misconduct with her while returning the same, the husband or his family is held will result in revocation of their passports and make them incapable of working in foreign countries.
Maintenance means an amount which husband has to pay to the wife for the Divorce. The main aim is to provide financial independence to the divorced women so as to facilitate convenience.
An Interim Maintenance
An interim maintenance is provided to the wife, in which an amount is to be paid from the date of filing of petition to the date of dismissal or decree. The aim of this allowance is to fulfill her basic needs during the pendency of the case. If both husband and wife are living separately with mutual consent, the wife cannot claim allowance from maintenance but a divorce decree by mutual consent to live separately cannot disentitle the wife to claim maintenance. The court can fix it at any amount, depending upon its discretion.
Grounds for awarding Maintenance
- Husband treated her with cruelty.
- Husband neglected her willfully or deserted her.
- Husband is suffering from any virulent leprosy or venereal disease.
- Husband has any other wife living.
- Husband keeps a concubine in the house or resides with that concubine somewhere else.
- Husband converted to another religion
- Insanity can also be a ground of divorce ( mental state and unsound mind)
- Presumption of death: If wife has not heard anything about the husband for at least seven years.
- Any other justification for separation valid in the eyes of law.
Right to Ancestral property
A married woman has to be provided with shelter and maintenance by husband after the divorce. If she is a member of a joint family then she will be entitled to equal share of the husband, jointly with his mother and her children(after his death).
How to get alimony in case husband refuses
- If husband had refused to provide maintenance, then wife can approach the court, which in turn, can order the husband to make payment, provided that the court is satisfied with the veracity of statements.
- The alimony should not exceed one-fifth of the income of the husband’s average income for the next three years preceding the order and shall continue till decree of nullity or dissolution of the marriage.
- Court can also order the husband to make weekly or monthly payments to the wife, if reasonable, taking into consideration the financial situation of the husband at that point of time.
- Can order the husband to give maintenance to the trustee of the wife on her behalf.
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