Divorce

Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse.

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

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 states in which divorce has become commonplace are the United States, Canada, South Korea, and members of the European Union, with the exception of Malta (where all civil marriages are for life, because civil divorce is banned). Japan retains a markedly lower divorce rate, though it has increased in recent years.

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.

Types of divorce

Template:Globalize/USA There are several types of divorce: at-fault, no-fault divorces and summary divorce. The types that are available vary by jurisdiction. In North America, the grounds for divorce differ by state or province.^[1]

No fault divorce

Under a no-fault divorce system a marriage partner does not need to show that the other marriage partner did or was at fault to obtain a divorce. Common reasons for no-fault divorce include: incompatibility, irreconcilable differences, and irremediable breakdown of the marriage. Forty-nine of the United States have adopted no-fault divorce laws. 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. The divorce application can be made by both parties jointly.

At-fault divorce

Fault divorces used to be the only way to break a marriage, and people who had differences only had the option to separate (and were prevented from legally remarrying). In the United States, only the state of New York still requires fault for a divorce. All other states have adopted no-fault divorce statutes.

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

A defense is expensive, and not usually practical as eventually most divorces are granted, especially when the public is not interested in forcing people to remain married.

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

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 spouse may separate, move to a state with divorce laws of their choice, establish residency, and file. However, this typically does not change the state in which property and other issues are decided.

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 children, etc.

Collaborative divorce

Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues, in large part because of its high success rate. 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. Collaborative divorce can be substantially less expensive than litigation.

Mediated divorce

Divorce mediation is an alternative to traditional divorce litigation. [1] 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. Some mediation sessions can also include a neutral attorney or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either. Divorce mediation can be significantly less expensive than litigation. [2]. The adherence rate to mediated agreements is much higher than that of adherence to court orders.

The lead characters in the film Wedding Crashers are divorce mediators.

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 that the reasons given were insufficient. Although liberally granted in ancient Athens, divorce was rare in early Roman culture. As the Roman Empire grew in power and authority, however, 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 6th century. After the fall of the empire, familial life was regulated more by ecclesiastical authority than civil authority. By the 9th or 10th century of the Christian era, the frequency of divorce had been greatly curtailed by the influence of the Christian church. ( 2 Kent's Commentaries on American Law, p. 96 (14th ed. 1896)). The Christian church considered marriage a sacrament instituted by God and Christ indissoluble by mere human action. Canons of the Council of Trent, Twenty-fourth Session.^[2]

Although divorce, as known today, was generally prohibited after the 10th century, actions allowing the separation of husband and wife and annulment of the 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. 2 Kent's Commentaries on American Law, p. 125, n. 1 (14th ed. 1896). Because the marriage did not end, the husband had a continuing duty to support his wife (alimony). From the earliest years of the Christian age until the 18th century, annulment was the only means by which a marriage could be dissolved, and the circumstances under which annulment was proper was solely within the province of ecclesiastical courts. The common-law courts had no power over marriage since it was a status granted by the Church. The grounds for annulment were determined only by Church authority. 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.” 1 W. Blackstone, Commentaries on the Laws of England, 428 (Legal Classics Library spec. ed. 1984); 2 Kent's Commentaries on American Law, p. 1225, n. 1; 1 E.Coke, Institutes of the Laws of England, 235 (Legal Classics Library spec. ed. 1985). 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.” (Blackstone, Commentaries on the Laws of England, p. 435 (Legal Classics Library spec. ed. 1984). Since husband and wife became one person upon marriage, that oneness could only be dissolved if the parties improperly entered into the marriage initially.

Marriage later came to be considered a civil contract, and civil authorities gradually asserted their power to decree divorce. Since no precedents existed defining the circumstances under which marriage could be dissolved, civil authorities heavily relied on the previous determinations of the ecclesiastic courts and freely adopted the requirements set down by those courts. Although the common-law courts gradually assumed the power to dissolve marriages, divorce was considered contrary to public policy, and the courts strictly construed those circumstances under which they would grant a divorce. Blackstone, Commentaries on the Laws of England, p. 429.

Because marriage could not be terminated except in the most extreme circumstances, common-law courts refused the grant of 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." Kent's Commentaries on American Law, p. 401. 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.” Kent's Commentaries on American Law, p. 147.

Causes

A 2006 survey by DivorceMagazine.com asked readers what had caused their separation or divorce. Taking both genders into consideration, 22.8% of respondents claimed infidelity as the strongest factor, followed by communication problems at 21.6%, basic incompatibility at 18.2%, and emotional or physical abuse at 16.8%. However, it is worth noting that the poll results differed somewhat between men and women. 27.4% of men chose basic incompatibility as the strongest factor; communication problems came second at 24.5%, followed by infidelity at 19.1% and abuse at 11.4%. (1033 women answered the poll, as opposed to only 481 men.)^[3]

An annual study in the UK by management consultants Grant Thornton estimates the main causes of divorce based on surveys of matrimonial lawyers.^[4]

The main causes in 2004 (2003) were:

Extramarital affairs - 27% (29%)
Family strains - 18% (11%)
Emotional/physical abuse - 17% (10%)
Mid-life crisis - 13% (not in 2003 survey)
Addictions, e.g. alcoholism and gambling - 6% (5%)
Workaholism - 6% (5%)

According to this survey, men engaged in extra-marital affairs in 75% (55%) of cases; women in 25% (45%). In cases of family strain, women's families were the primary source of strain in 78%, compared to 22% of men's families.

Emotional and physical abuse were more evenly split, with women affected in 60% and men in 40% of cases. In 70% of workaholism-related divorces it was men who were the cause, and 30% women.

The 2004 survey found that 93% of divorce cases were petitioned by women, very few of which were contested.

53% of divorces were of marriages that had lasted 10 to 15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.

Regarding divorce settlements, as defined by this survey women obtained a better or considerably better settlement than men in 60% of cases. In 30% of cases the assets were split 50-50, and in only 10% of cases did men achieve better settlements (down from 24% the previous year). The 2004 report concluded that campaigns like that of Fathers 4 Justice must succeed in increasing the percentage of shared residence orders, in order for more equitable financial divisions to become the norm.

To prevent jurisdiction shopping you can only now bring proceedings in England and Wales if you are habitually resident there or have retained domicile in England and Wales. This applies to the whole of the EU. It may appear therefore that if you live in France but were married in England, you should bring the proceedings in France. However, the legal notion of domicile is not what one might think. To retain domicile in the UK, it is sufficient to retain identification with the home country, which is relatively easy to claim as long as you have not adopted foreign citizenship.

Relatively few lawyers or judges are clear about the EU law regarding jurisdiction.

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.^[5]

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.^[6] 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 divorce filing rate by women approaches 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.^[7]

A July, 2000 poll by DivorceMagazine.com asked whether the wife or husband initiated the reader's divorce. About 57% of those who responded said that the wife had initiated it.^[8]

When women anticipate a clear gender bias in the courts regarding custody, they expect to be the primary residential parent for the children and 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.

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.

Incidence

References

^ "Divorce Magazine: Grounds for Divorce Information". DivorceMagazine.com. Retrieved 2008-02-05. {{cite web}}: Cite has empty unknown parameters: |accessyear=, |month=, |accessmonthday=, and |coauthors= (help)
^ "Session the Twenty-Fourth". The canons and decrees of the sacred and oecumenical Council of Trent. Ed. and trans. J. Waterworth. London: Dolman. 1848. pp. 192–232. Retrieved 2006-09-18. {{cite book}}: Cite has empty unknown parameters: |accessyear=, |origmonth=, |accessmonth=, |month=, |chapterurl=, |origdate=, and |coauthors= (help)CS1 maint: others (link)
^ "Divorce Magazine Poll Results". DivorceMagazine.com. Retrieved 2007-09-28. {{cite web}}: Cite has empty unknown parameters: |accessyear=, |month=, |accessmonthday=, and |coauthors= (help)
^ "Extra-marital affairs remain biggest cause for divorce as major increases in family strains and emotional/physical abuse also cause more splits - new survey". Grant Thornton. Retrieved 2006-09-10. {{cite web}}: Cite has empty unknown parameters: |accessyear=, |month=, |accessmonthday=, and |coauthors= (help)
^ "Advance Report of Final Divorce Statistics, 1988" (PDF). Monthly Vital Statistice Report. 39 (12 (supplement 2)). 1991-05-21. {{cite journal}}: Cite has empty unknown parameters: |quotes=, |coauthors=, and |month= (help)
^ Brinig, Margaret (2000). "These Boots Are Made for Walking: Why Most Divorce Filers are Women". American Law and Economics Review. 2 (1): 126–129. {{cite journal}}: Cite has empty unknown parameters: |quotes= and |month= (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)
^ Kuhn, Richard (1997-10-23). "Child Custody Policies and Divorce Rates in the US". 11th Annual Conference of the Children's Rights Council. Retrieved 2006-09-18. {{cite conference}}: Cite has empty unknown parameter: |month= (help); Unknown parameter |booktitle= ignored (|book-title= suggested) (help); Unknown parameter |coauthors= ignored (|author= suggested) (help)
^ "Divorce Magazine Poll Results". DivorceMagazine.com. Retrieved 2007-09-28. {{cite web}}: Cite has empty unknown parameters: |accessyear=, |month=, |accessmonthday=, and |coauthors= (help)