Definitions

separate maintenance

Divorce

[dih-vawrs, -vohrs]

Divorce or dissolution of marriage is the termination of a marriage.

Divorce can be contrasted with an annulment, which is a declaration that a marriage is void, though the effects of marriage may be recognised in such unions, such as spousal support or alimony, child custody, child support, and distribution of property.

Divorce laws vary considerably around the world. Divorce is not possible in some countries, such as in Malta and in the Philippines, but an annulment is permitted.

In some jurisdictions, a divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful and expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. In some other countries, like Portugal, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity, where also can be served an Electronic Divorce since March 2008.

In cases involving children, governments have a pressing interest in ensuring that disputes between parents do not spill over into the family courts. One way of doing this is through the encouragement of a parenting plan. In the United States, all states now require parents to file a parenting plan when they legally separate or divorce.

The subject of divorce as a social phenomenon is an important research topic in sociology. In many developed countries, divorce rates increased markedly during the twentieth century. Among the nations in which divorce has become commonplace are the United States, Canada, and members of the European Union. Japan retains a markedly lower divorce rate, though it has increased in recent years.

Types of divorce

The approach to divorce varies by jurisdiction. There are two basic approaches to divorce: fault based and no-fault based.

Fault divorce can affect the distribution of property, and will allow an immediate divorce, in states where there is a waiting period required for no-fault divorce.

Residency requirements vary from state to state, and a couple may separate, one spouse may move to a state with divorce laws of their choice, establish residency, and then apply for divorce. However, this typically does not change the state in which property and other issues are decided.

No fault divorce

Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party to be shown. No-fault divorce has been in operation in Australia since 1975 and the only thing the applicant needs to show is separation (or "deemed separation") for 12 months, and the divorce application can be made by either party or by both parties jointly.

Forty-nine states of the United States have adopted unilateral no-fault divorce laws. Common reasons for no-fault divorce include incompatibility, irreconcilable differences, and irremediable breakdown of the marriage. No-fault divorce can be a unilateral divorce action forced upon the non-initiating spouse by the initiator with the support of the court system. The non-initiating spouse may be divorced against his or her will, though "not at fault".

In England a to obtain a no fault divorce the time scales are 2 years if both parties agree and 5 years if one party does not agree.

At-fault divorce

Fault divorces used to be the only way to break a marriage, and people who had differences, but did not qualify as "at fault", only had the option to separate (and were prevented from legally remarrying).

In the United States, New York is the only state that still requires fault for a divorce.

However there are ways (defenses) to prevent a fault divorce:

A defence is expensive, and not usually practical as eventually most divorces are granted.

Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.

Summary divorce

A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.

Key factors:

  • Short marriage (under 5 years)
  • No children (or, in some states, they have resolved custody and set child support payments)
  • Minimal or no real property (no mortgage)
  • Marital property is under a threshold (around $35,000 not including vehicles)
  • Each spouse's personal property is under a threshold (typically the same as marital property)

Uncontested divorce

It is estimated that upwards of 95% of divorces in the US are "uncontested," because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property, deal with the custody of their children.

Collaborative divorce

Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support. Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot later be used in further legal proceedings, as the collabrative process is confidential proceedings. Furthermore, there are no set enforceable timelines for completion of a divorce using collabrative divorce.

Mediated divorce

Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the husband and wife by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include the party's attorneys or a neutral attorney or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted without attorneys. Divorce mediators may be attorneys who have experience in divorce cases. Divorce mediation can be significantly less expensive than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.

History

Divorce existed in antiquity, dating at least back to ancient Mesopotamia. The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate, and the magistrate could determine whether the reasons given were sufficient.

Divorce was rare in early Roman culture however. But as their empire grew in power and authority Roman civil law embraced the maxim, “matrimonia debent esse libera” ("marriages ought to be free"), and either husband or wife could renounce the marriage at will. Though civil authority rarely intervened in divorces, social and familial taboos guaranteed that divorce occurred only after serious circumspection.

The Christian emperors Constantine and Theodosius restricted the grounds for divorce to grave cause, but this was relaxed by Justinian in the sixth century. After the fall of the empire, familial life was regulated more by ecclesiastical authority than civil authority. By the ninth or tenth century, the divorce rate had been greatly reduced under the influence of the Christian Church, which considered marriage a sacrament instituted by God and Christ indissoluble by mere human action.

Although divorce, as known today, was generally prohibited after the tenth century, separation of husband and wife and the annulment of marriage were well-known. What is today referred to as “separate maintenance” (or "legal separation") was termed “divorce a mensa et thoro” (“divorce from bed-and-board”). The husband and wife physically separated and were forbidden to live or cohabit together; but their marital relationship did not fully terminate. Civil courts had no power over marriage or divorce. The grounds for annulment were determined by Church authority and applied in ecclesiastical courts. Annulment was known as “divorce a vinculo matrimonii,” or “divorce from all the bonds of marriage,” for canonical causes of impediment existing at the time of the marriage. “For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio.” The Church held that the sacrament of marriage produced one person from two, inseparable from each other: “By marriage the husband and wife are one person in law: that is, the very being of legal existence of the woman is suspended during the marriage or at least incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything.” Since husband and wife became one person upon marriage, that oneness could only be annulled if the parties improperly entered into the marriage initially.

Marriage later came to be considered a civil contract, and on that basis civil authorities gradually asserted their power to decree divorce. Since no precedents existed defining the circumstances under which marriage could be dissolved, civil courts heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse." If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage. Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or “extreme cruelty.”

In post Victorian America divorce rates sky rocketed as was shown in Elaine Tyler May's Great Expectations: Divorce in post Victorian America which argued that the shift from the repression of desire to pursuing it due to increased leisure time and the eight hour day, Americans expected more than duty from their spouses. The American home was no longer an abode for discipline and suppression of desire but a place for the pursuit of happiness and satisfaction. Divorce before the 1920's was based on the husband not providing 'life' necessities' for his child and wife. Later it became clear that men and women wanted to be sexually satisfied in their marriages as well as have the public chaste image. This clash in expecting old values with the best of the modern values cause much grief between couples leading to monetary problems and problems sexually, leading to divorce. The shift in the 1920's, to expect more from married life other than duty and chastity from the wife and hard work and suppression of vice from the husband leads us into the present predicament of the high divorce rates in this country.

Who initiates divorce?

The National Center for Health Statistics reports that from 1975 to 1988 in the US, in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women.

According to a study published in the American Law and Economics Review, women currently file slightly more than two-thirds of divorce cases in the US. There is some variation among states, and the numbers have also varied over time, with about 60% of filings by women in most of the 19th century, and over 70% by women in some states just after no-fault divorce was introduced, according to the paper. Evidence is given that among college-educated couples, the percentages of divorces initiated by women is approximately 90%.

In their study titled "Child Custody Policies and Divorce Rates in the US," Kuhn and Guidubaldi find it reasonable to conclude that women anticipate advantages to being single, rather than remaining married.

When women anticipate a clear gender bias in the courts regarding custody, they expect to be the primary residential parent for the children and recipient of the resulting financial child support, maintaining the marital residence, receiving half of all marital property, and gaining total freedom to establish new social relationships. In their detailed analysis of divorce rates, Kuhn and Guidubaldi conclude that acceptance of joint physical custody may reduce divorce. States whose family law policies, statutes, or judicial practice encourage joint custody have shown a greater decline in their divorce rates than those that favor sole custody.

Divorce avoidance

Religious/cultural attitudes

Many religions have varied attitudes towards divorce, ranging from prohibited to acceptable behavior.

At times these religious attitudes may create a conflict with secular legal systems.

Implications of divorce

There are significant emotional, financial, medical and psychological implications of divorce.

Divorce laws in different countries

Different societies and legal jurisdictions have varying attitudes towards divorce. Catholics do not allow divorce, only annulment. Non-Catholic Christians and Muslims are also not encouraged to divorce, although it is accepted.

Only Malta, the Philippines and the Vatican don't allow divorce at all.

Incidence

Divorce party

A divorce party is a ceremony that celebrates the end of a marriage or civil union. Increasingly many people undergoing a divorce choose to hold a party or ceremony in order to bring closure to the marriage. In the case of an amiable divorce, couples may choose to hold a joint divorce ceremony together to signify the dissolution of a marriage but to emphasize their continuing friendship and good relations afterwards.

References

Songs about divorce

Los Angeles based sketch comedy group, Dynamite Kablammo sang an original song (called "D-I-V-O-R-C-E") about a couple wrapped up in the joys of getting a divorce in their 2008 show, "Are You Delicious?"

Shawn Colvin's A Few Small Repairs album theme was about divorce.

Further reading

  • Mercer, Diana and Marsha Kline Pruett. Your Divorce Advisor: A Lawyer and Psychologist Guide You Through the Legal and Emotional Landscape of Divorce. Fireside, 2001. ISBN 0-684-87068-1 and ISBN 978-0684870687.
  • Gallagher, Maggie. "The Abolition of Marriage." Regnery Publishing, 1996. ISBN 0-89526-464-1.
  • Haltzman, Scott. Secrets of Happily Married Men: Eight Ways to Win Your Wife's Heart Forever. John Wiley & Sons Inc., 2005 ISBN 0787979597.
  • Lester, David. "Time-Series Versus Regional Correlates of Rates of Personal Violence." Death Studies 1993: 529-534.
  • McLanahan, Sara and Gary Sandefur. Growing Up with a Single Parent; What Hurts, What Helps. Cambridge: Harvard University Press, 1994: 82.
  • Morowitz, Harold J. "Hiding in the Hammond Report." Hospital Practice August 1975; 39.
  • S.P.A.R.C. (Separated Parents Access & Resource Center)
  • Office for National Statistics (UK). Mortality Statistics: Childhood, Infant and Perinatal, Review of the Registrar General on Deaths in England and Wales, 2000, Series DH3 33, 2002.
  • U.S. Bureau of the Census. Marriage and Divorce. General US survey information.
  • Divorce in India

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