Divorce in the United States
|Marriage and other
equivalent or similar unions and status
|Validity of marriages|
|Dissolution of marriages|
|Private international law|
|The Family and the Criminal Code
(or Criminal Law)
Like marriage, divorce in the United States is the province of the state governments, not the federal government. Divorce or "dissolution of marriage" is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the status of being single and permitting them to marry other individuals. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.
Divorce laws vary from state to state. Although all states allow "no fault" divorce proceedings, in many states a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support. No-fault divorce on grounds such as "irreconcilable differences", "irretrievable breakdown of the marriage", "incompatibility" or a period of living apart is now available in all states, though some states require a period of legal and/or physical separation prior to a formal divorce decree. This legal requirement, along with couples who live in a state of separation simply because neither has sought or completed a divorce for other reasons, has led to the creation of a separate, somewhat ambiguously-perceived category of relationships – "separated".
Prior to the introduction of no fault divorce, a spouse had to prove the 'fault' (e.g. adultery, desertion, cruelty etc.) of the other spouse in order to obtain a divorce; although spouses and their lawyers were usually able to negotiate "uncontested" divorces. The no-fault divorce revolution began in 1969 in California; New York was the latest state to allow non-consensual no-fault divorce, in 2010. Every state's law provides for child support where children are involved, and sometimes for alimony. The median length for a marriage in the US today is 11 years with 90% of all divorces being settled out of court.
In all but one state, and even in that state in most cases, a divorce must be certified by a court of law to become effective. The terms of the divorce are usually determined by the court, though they may take into account prenuptial or postnuptial agreements, or simply ratify terms that the spouses may have agreed to privately. In the absence of agreement, a contested divorce may be stressful to the spouses and lead to expensive litigation. Less adversarial approaches to divorce settlements include mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts.
In cases involving children, governments have a pressing interest in ensuring that disputes between parents do not spill over into the family courts. All states now require parents to file a parenting plan, or to decide on custody and visitation either by reaching a written agreement or in a court hearing, when they legally separate or divorce.
- 1 Divorce law
- 2 Types of divorce
- 3 Statistics (U.S.)
- 4 See also
- 5 References
- 6 Further reading
- 7 External links
Divorce in the U.S. is governed by state rather than federal law.
Since the 1980s, federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRS established rules on the deductibility of alimony, and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain health insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks.
Prior to the latter decades of the 20th century, a spouse seeking divorce in most states had to show a "fault" such as abandonment, cruelty, incurable mental illness, or adultery. Even in such cases, a divorce was barred in cases such as the suing spouse's procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty). By the 1960s, however, the use of collusive or deceptive practices to bypass the fault system had become a widespread concern, if not actually a widespread practice, and there was widespread agreement that something had to change. The no-fault divorce "revolution" began in Oklahoma in 1953, but gained national impetus in 1969 in California, and was nearly completed in 1985 in South Dakota. In August 2010, New York's governor, David Paterson, signed a bill removing mutual-consent requirements for "no-fault" divorce into law. One form or another of no-fault divorce has long been legal in all 50 U.S. states, and the District of Columbia.
Typically, a county court hears requests for dissolution of marriages. The National Association of Women Lawyers was instrumental in convincing the American Bar Association to help create a Family Law section in many state courts, and pushed strongly for no-fault divorce law around 1960 (cf. Uniform Divorce Bill). In some states fault grounds remain, but all states now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, some states require mutual consent and/or a waiting period, from 6 months to 2 years of separation. Some have argued that the lack of means to contest a no-fault divorce makes a marriage contract the easiest of all contracts to dissolve, and in very recent years[when?] some have begun to favor moderate divorce reforms such as requiring mutual consent for no-fault divorce. However, no such laws have been passed as of 2007[update].
Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.
Mediation is an alternative way of resolving divorce issues. It might be less adversarial (particularly important for any children), allow the parties greater control and privacy, save money, and generally achieve similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly.
Similar in concept is Collaborative law, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. The additional support of attorneys and expert neutrals (such as financial specialists and coaches) may contribute to the success rate of a collaborative divorce. If the collaborative divorce process ends without the parties reaching a settlement, the collaborative lawyers become disqualified, and must be replaced by new counsel. The collaborative lawyers and clients can focus all their energies on trying to settle the case, without all the distractions, dangers and pressures of contested divorce litigation. Lawyers who specialize in collaborative divorce have training and skills to help parties resolve their issues.
Non-court based dispute resolution approaches such as this may reduce the trauma of divorce for all parties. Some believe that mediation may not be appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances, for example. Most divorce lawyers encourage settlement even when alternative dispute resolution mechanisms are not employed.
States vary in their rules for division of assets in a divorce. Some states are "community property" states, but most are "equitable distribution" states, and others have elements of both. Most "community property" states start with the presumption that community assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their dependency. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.
Alimony, also known as 'maintenance' or 'spousal support' is still being granted in many cases, especially in longer term marriages. Alimony is more likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family. Permanent alimony becomes likelier in lengthy marriages.
A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved. Since the mid-1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation. In states lacking such provisions, some couples sign contracts undertaking the same obligations.
In recent years,[when?] a few high-profile court cases have involved children "divorcing" their parents, or being legally declared emancipated minors. Perhaps the best known are those of actor Macaulay Culkin and Olympic gymnast Dominique Moceanu. However, these are not properly "divorce" cases, and different laws apply.
Divorcing in another jurisdiction
||This section's tone or style may not reflect the encyclopedic tone used on Wikipedia. (March 2013)|
- Until August 2010, New York did not have a no-fault divorce procedure.
- Some jurisdictions have complex and long residency requirements as well as extensive paperwork.
- Many jurisdictions take from three months to a year or longer to issue a finalized divorce.
- Some people attempt to avoid the financial hardship of a divorce, and get a divorce from a jurisdiction that allows fast uncontested divorces that offer little or no spousal support to the defendant.
Divorces granted by other countries are generally recognized by the United States as long as no person's rights were infringed upon. The most notable in this situation is the notion of "due process", which is required by the Constitution of the United States and thus is not flexible. This means that the spouse who is the defendant in the case must be notified of the proceedings and be given a certain time frame to respond to the allegations and state their case. This is the case in a contested divorce. In an uncontested divorce both spouses agree to the terms and sign off on the divorce. Usually only one spouse is required to physically visit the country. While a contested divorce where due process was not observed is likely to be ruled invalid by a court in the United States if challenged, it is not illegal, as matrimonial law is private law and not criminal law, and is valid by default unless or until it is challenged (usually in the state or country of residency of either spouse.)
Obtaining a contested divorce in another country is not likely to achieve the goals of the spouse requesting it. It is possible to create a larger problem than before. An uncontested divorce is likely to be upheld in a court of law in some jurisdictions, regardless of the general validity of contested divorces from these jurisdictions. While a divorce without genuine residency is likely to be declared invalid. In some jurisdiction it is, by case law, not considered bigamy if you remarry as long as the plaintiff believed the divorce to be valid.
There are 5 major jurisdictions people look towards for a divorce in another state or country:
- The United States:
- Countries foreign to the United States:
Divorcing in Haiti, Mexico, and The Dominican Republic can be similar. These countries can adjudicate an overnight/long weekend divorce, or to obtain a contested divorce, valid if due process has been observed.
Quick Divorce in the Dominican Republic is available to foreigners or Dominican citizens residing abroad, when both spouses agree to plead before Dominican Courts. This procedure is simple and requires the attendance of one of the spouses during the hearing. The hearing often takes less than half an hour. It takes ten to fifteen days to obtain a divorce decree.
The parties sign a settlement agreement written by an attorney in their native jurisdiction in order to ensure it conforms local laws. This document includes an inventory of property, or statement of non-property, the statement regarding minor children and support agreement, the desire to divorce before a Dominican Court, and the authorization of the non-attending spouse for the other to attend to the hearing on the non-attendees behalf. The settlement agreement can be drafted by an attorney in the home jurisdiction of the pleader(s). Both these documents (settlement agreement and power) must be signed by the parties before the Dominican Consulate nearest to them in the United States. A detailed instruction on legalization is provided when instructions to proceed are received.
The State of Nevada is commonly used for a few reasons. It requires a 6-week stay to meet the residency requirements, the lowest in the United States. One easy way to demonstrate that you have met this requirement is by having another resident of Nevada simply sign an affidavit testifying to your residency there. Nevada allows for "irreconcilable differences" as a cause for divorce. The state has an extensive but straightforward system for marriage annulment. One major reason this attracts people is it allows for an easy bypassing of the mandatory 50/50 split in community property states, most notably the adjoining State of California. Nevada, however, is also a community property state and hence will follow similar rules in a divorce proceeding.
Because Guam is a territory of the United States, its courts are United States jurisdictional courts and the divorces it issues are valid in all of the states in the US, as long as one spouse was residing there at the time of the divorce. Prior to January 1, 2006, Guam allowed for an uncontested divorce without either spouse visiting the territory. After being charged as a "divorce mill", including by many in its own government, an agreement was made with the lawyers and other lobbyists who did not want to change the law to now require a 7-day stay in Guam (as opposed to the much longer ones proposed) to obtain a divorce. Guam allows for "irreconcilable differences" as a cause for divorce. Guam is quicker to award a finalized divorce than many US states, taking a few weeks at most.
In the case of disputed custody, lawyers advise disputants remain in the jurisdiction applicable to the dispute, i.e. the country or state of residence for one of the parties. Even if undisputed, the spouse could later dispute it and potentially invalidate another jurisdiction's ruling.
Types of divorce
Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support.
Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary.
Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party. Since August 2010 (when New York Governor David Patterson signed no-fault into law), all fifty states of the United States have adopted no-fault divorce laws, with grounds for divorce including incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.
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 August 2010 "no-fault" divorce became law in the state of New York, making it the final US State to do so.
However there are ways (defenses) to prevent a fault divorce:
A defense 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.
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.
- 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)
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 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 collaborative process is confidential proceedings. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative 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.
Civil courts gradually assumed greater involvement in the issues arising from the breakdown of marriage on the basis that a marriage was a civil contract. However, the grounds and precedents of the ecclesiastic courts were adopted by civil 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.”
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.
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.
Rates of divorce
"Rate of divorce" usually refers to the number of divorces that occur in the population during a given period. However it is also used in common parlance to refer to the likelihood of a given marriage ending in divorce (as opposed to the death of a spouse).
In 2002 (latest survey data as of 2012), 29% of first marriages among women aged 15–44 were disrupted (ended in separation, divorce or annulment) within 10 years. Beyond the 10-year window, population survey data is lacking, but forecasts and estimates provide some understanding. It is commonly claimed that half of all marriages in the United States eventually end in divorce, an estimate possibly based on the fact that in any given year, the number of marriages is about twice the number of divorces. Using 1995 data, National Survey of Family Growth forecast in 2002 a 43% chance that first marriages among women aged 15–44 would be disrupted within 15 years. More recently, having spoken with academics and National Survey of Family Growth representatives, PolitiFact.com estimated in 2012 that the lifelong probability of a marriage ending in divorce is 40%–50%.
Divorce rates have been dropping during the last few decades. Data indicates that marriages have lasted longer in the 21st century than they did in the 1990s.
A 2011 study at the University of Iowa found that loss of virginity before age 18 was correlated with a greater number of occurrences of divorce within the first 10 years of marriage.
Other variables that may affect rates of divorce include:
- importance of religion to the couple
- divorce in family of origin
- if the woman has a history of rape by a man before the marriage
- Timing of the first birth of any children (before marriage, within 7 months, after 7 months, or never)
- If one spouse has Generalized Anxiety Disorder
A 2008 study by Jenifer L. Bratter and Rosalind B. King conducted on behalf of the Education Resources Information Center examined whether crossing racial boundaries increased the risk of divorce. Using the 2002 National Survey of Family Growth (Cycle VI), the likelihood of divorce for interracial couples to that of same-race couples was compared. Comparisons across marriage cohorts revealed that, overall, interracial couples have higher rates of divorce, particularly for those that married during the late 1980s. The authors found that gender plays a significant role in interracial divorce dynamics: According to the adjusted models predicting divorce as of the 10th year of marriage, interracial marriages that are the most vulnerable involve White females and non-White males (with the exception of White females/Hispanic White males) relative to White/White couples. White wife/Black husband marriages are twice as likely to divorce by the 10th year of marriage compared to White/White couples, while White wife/Asian husband marriages are 59% more likely to end in divorce compared to White/White unions. Conversely, White men/non-White women couples show either very little or no differences in divorce rates. Asian wife/White husband marriages show only 4% greater likelihood of divorce by the 10th year of marriage than White/White couples. In the case of Black wife/White husband marriages, divorce by the 10th year of marriage is 44% less likely than among White/White unions. Intermarriages that did not cross a racial barrier, which was the case for White/Hispanic White couples, showed statistically similar likelihoods of divorcing as White/White marriages.
Divorce rate by state
The following lists the number of divorces annually per 1,000 population in each state:
|State||Marriage rate||Divorce rate|
|District of Columbia||8.2||6.1||6.6||4.9||6.2||5.1||4.5||3.2||3.6||3.2||2.9||2.4|
- 1 Includes annulments. Includes divorce petitions filed or legal separations for some counties or States.
- 2 Marriage data includes nonlicensed marriages registered.
- Marriage in the United States
- American family structure
- Divorce demography
- Divorce of same-sex couples — legal aspects, divorce rates
- Divorce party
- Fear of commitment
- Implications of divorce
- Legal separation
- Men's Rights
- Relationship counseling
- Religion and divorce
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