Divorce

A court decree that terminates a marriage; also known as marital dissolution.

A divorce decree establishes the new relations between the parties, including their duties and obligations relating to property that they own, support responsibilities of either or both of them, and provisions for any children.

When a marriage breaks up, divorce law provides legal solutions for issues that the HUSBAND AND WIFE are unable to resolve through mutual cooperation. Historically, the most important question in a divorce case was whether the court should grant a divorce. When a divorce was granted, the resolution of continuing obligations was simple: The wife was awarded custody of any children, and the husband was required to support the wife and children.

Modern divorce laws have inverted the involvement of courts. The issue of whether a divorce should be granted is now generally decided by one or both of the spouses. Contemporary courts are more involved in determining the legal ramifications of the marriage breakup, such as spousal maintenance, CHILD SUPPORT, and CHILD CUSTODY. Other legal issues relating to divorce include court jurisdiction, antenuptial and postnuptial agreements, and the right to obtain a divorce. State laws govern a wide range of divorce issues, but district, county, and family courts are given broad discretion in fixing legal obligations between the parties.

In early civilizations, marriage and marriage dissolution were considered private matters. Marriage and divorce were first placed under comprehensive state regulation in Rome during the reign of Augustus (27 B.C.–A.D. 14). As Christianity spread, governments came under religious control, and the Roman Catholic Church strictly forbade divorce. The only exception to this ban was if one of the parties had not converted to Christianity before the marriage.

During the 1500s, the Protestant Reformation movement in Europe rejected religious control over marriage and helped to move the matter of divorce from the church to the state. European courts granted divorces upon a showing of fault, such as ADULTERY, cruelty, or desertion.

England struggled with the matter of divorce. From 1669 to 1850, only 229 divorces were granted in that country. Marriage and divorce were controlled by the Anglican Church, which, like the Roman Catholic Church, strictly forbade divorce. The Anglican Church allowed separations, but neither spouse was allowed to remarry while the other was still living.

The law of divorce in the American colonies varied according to the religious and social mores of the founding colonists. England insisted that its American colonies refrain from enacting legislation that contradicted the restrictive English laws, and a colonial divorce was not considered final until it had been approved by the English monarch. Despite these deterrents, a few northern colonies adopted laws allowing divorce in the 1650s.

Divorce law in the middle and northern colonies was often curious. Under one late-seventeenth-century Pennsylvania law, divorce seemed a mere afterthought: If a married man committed SODOMY or bestiality, his punishment was castration, and "the injured wife shall have a divorce if required." In Connecticut, divorce was allowed on the grounds of adultery, desertion, and the husband's failure in his conjugal duties. In the Massachusetts Bay Colony, a woman was allowed to divorce her husband if the husband had committed adultery and another offense. A man could divorce if his wife committed adultery or the "cruel usage of the husband."

After the Revolutionary War, divorce law in the United States continued to develop regionally. The U.S. Constitution was silent as to divorce, leaving the matter to the states for regulation. For the next 150 years, state legislatures passed and maintained laws that granted divorce only upon a showing of fault on the part of a spouse. If a divorce were contested, the divorcing spouse would be required to establish, before a court, specific grounds for the action. If the court felt that the divorcing spouse had not proved the grounds alleged, it would be free to deny the petition for divorce.

The most common traditional grounds for divorce were cruelty, desertion, and adultery. Other grounds included nonsupport or neglect, alcoholism, drug addiction, insanity, criminal conviction, and voluntary separation. Fault-based divorce laws proliferated, but not without protest. In 1901, author JAMES BRYCE was moved to remark that U.S. divorce laws were "the largest and the strangest, and perhaps the saddest, body of legislative experiments in the sphere of FAMILY LAW which free, self-governing communities have ever tried."

In 1933, New Mexico became the first state to allow divorce on the ground of incompatibility. This new ground reduced the need for divorcing spouses to show fault. In 1969, California became the first state to completely revise its divorce laws. The California Family Law Act of 1969 provided, in part, that only one of two grounds was necessary to obtain a divorce: irreconcilable differences that have caused the irremediable breakdown of the marriage, or incurable insanity (Cal. Civ. Code § D. 4, pt. 5 [West], repealed by Stat. 1992, ch. 162 [A.B. 2650], § 3 [operative Jan. 1, 1994]). In divorce proceedings, testimony or other evidence of specific acts of misconduct were excluded. The one exception to this rule was where the court was required to award child custody. In such a case, serious misconduct on the part of one parent would be relevant.

California's was the first comprehensive "no-fault" divorce law, and it inspired a nationwide debate over divorce reform. Supporters of no-fault divorce noted that there were numerous problems with fault-based divorce. Fault-based divorce was an odious event that destroyed friendships. It also encouraged spouses to fabricate one of the grounds for divorce required under statute. No-fault divorce, conversely, recognized that a marriage breakdown might not be the result of one spouse's misconduct. No-fault divorce laws avoided much of the acrimony that plagued fault-based divorce laws. They also simplified the divorce process and made it more consistent nationwide, thus obviating the need for desperate couples to cross state lines in search of simpler divorce laws.

In 1970, the Commissioners on Uniform State Laws prepared a Uniform Marriage and Divorce Act, which provides for no-fault divorce if a court finds that the marriage is "irretrievably broken" (U.L.A., Uniform Marriage and Divorce Act §§ 101 et seq.). Such a finding requires little more than the desire of one spouse to end the marriage. Many state legislatures adopted the law, and by the end of the 1970s, nearly every state legislature had enacted laws allowing no-fault divorce, or divorce after a specified period of separation. Some states replaced all traditional grounds with a single no-fault provision. Other states added the ground of irreconcilable differences to existing statutes. In such states, a divorce petitioner remains free to file for divorce under traditional grounds.

Most states allow the filing of a divorce petition at any time, unless the petitioner has not been a resident of the state for a specified period of time. Some states require a waiting period for their residents. The waiting period can range from six weeks to two or three years.

Illinois and South Dakota maintain the strictest divorce laws. In Illinois, a marriage may be dissolved without regard to fault where three conditions exist: the parties have lived apart for a continuous period of two years; irreconcilable differences have caused the irretrievable breakdown of the marriage; and efforts at reconciliation would be impracticable and not in the best interests of the family (Ill. Rev. Stat. ch. 750 I.L.C.S. § 5/401(a)(2)). In South Dakota, irreconcilable differences are a valid ground for divorce, which suggests some measure of fault blindness (S.D. Codified Laws Ann. § 25:4-2). However, irreconcilable differences exist only when the court determines that there are "substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved" (§ 25:4-17.1).

In Minnesota, the statute covering dissolution of marriage reads like a primer on no-fault divorce. Minnesota Statutes Annotated, Section 518.05, defines dissolution as "the termination of the marital relationship between a husband and wife" and concludes that a divorce "shall be granted by a county or district court when the court finds there has been an irretrievable breakdown of the marriage relationship." "Irretrievable breakdown" is left undefined in the statute. In Texas, the no-fault statute is titled "Insupportability." This law provides that on petition by either party, "a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities" that destroys the purpose of marriage and renders reconciliation improbable (Tex. Fam. Code Ann. § 3.01 [West]).

No-fault is not without its detractors. Some critics argue that strict, no-fault divorce can provide a cover for serious marital misconduct. By refusing to examine the marital conduct of parties in setting future obligations, some states prevent spouses, usually impoverished wives, from exposing and receiving redress for tortious or criminal conduct. In response to this problem, the vast majority of states have abolished statutes that prevent one spouse from suing the other. However, TORT claims for marital misconduct are often treated with suspicion, and juries are seldom eager to settle marital discord. A marital tort claim is also subject to business judgment: If the case does not appear cost-effective, an attorney might be reluctant to accept it.

Fault has survived in some aspects of divorce proceedings. It was once relevant to a decree of divorce and irrelevant to such matters as child custody and property divisions. Under current trends, marital misconduct is irrelevant to the divorce itself, but it may be relevant to related matters such as child custody, child support and VISITATION RIGHTS, spousal maintenance, and property distribution.

A recent movement in a small number of states has sought to reintroduce fault as an element in divorce proceedings. In 1997, Louisiana approved a COVENANT MARRIAGE law that is designed to provide an alternative to the traditional method for obtaining a marriage license. La. Rev. Stat. Ann. §§ 9:272-75, 9:307-09 (West Supp. 2003). Under the covenant marriage law, couples who wish to obtain a marriage license must first enter pre-marriage counseling, and then must provide an AFFIDAVIT from a marriage counselor stating that they have completed this counseling. Once the couple is married, the covenant marriage does not differ from a traditional marriage until the potential dissolution of the marriage. Before partners to a covenant marriage may divorce, they must complete pre-divorce counseling and must provide an affidavit stating that the counseling has taken place. The statute is designed to make it more difficult to obtain a so-called "quickie" divorce.

The introduction of covenant marriage as an alternative to the traditional marriage agreement comes in the wake of several studies regarding the implications of divorce on children. Studies have shown that the economic standard of living for divorced women and children of a marriage decrease significantly after the divorce, while the standard of living for men increases. Likewise, other studies have shown that children of divorced parents are less likely to marry, have less education, and are more likely to abuse drugs and alcohol later in life.

In response to these and similar statistics, legislatures considered several means by which they could curb the climbing rate of divorce. Highly restrictive provisions on divorce, including the elimination of no-fault divorce, failed to pass any state legislature. Louisiana's covenant marriage law represents a compromise in that it leaves the decision to enter into such a marriage up to the couples. Several states in 1997 and 1998 considered enacting similar laws, but only Arizona and Arkansas have done so.

Covenant marriage laws also do not appear popular with couples in the three states that have adopted such laws. According to an article in the New York Times, only three percent of couples in Louisiana and Arizona have chosen to pursue this type of marital agreement, and studies show that tougher divorce laws have failed to gain popularity in those states. Moreover, several commentators have noted that the divorce rate in Louisiana and Arizona is not likely to decrease even with these laws in place.

Other states that have not enacted covenant marriage laws have considered other methods to discourage divorce. Several states have included provisions that encourage couples to seek pre-marital counseling before entering into the marriage. Unlike the covenant marriage laws, these provisions do not mandate such counseling, and they leave the decision to pursue counseling to the individual couples. The various statutes provide a number of incentives for seeking counseling, including, for example, reduction in the cost for a marriage license upon completion of counseling.

Historically, custody of the children of divorcing parents was awarded to the mother. Today, courts exercise their discretion in awarding custody, considering all relevant factors, including marital misconduct, to determine the children's best interests. Many parents are able to reach settlements on custody and visitation through mediation. Joint custody is a popular option among conciliatory spouses. Child custody is, however, a frequent battleground for less-than-conciliatory spouses.

In determining child-support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty. However, for pre-school children, the primary caretaker may not be obligated to obtain employment; in such cases, caretaking may be regarded as being in lieu of financial contribution.

All states have enacted some form of the Reciprocal Enforcement of Support Act, a uniform law designed to facilitate the interstate enforcement of support obligations by spouses and parents (U.L.A., Uniform Interstate Family Support Act of 1992). Such statutes prevent a nonsupporting spouse or parent from escaping obligations by moving to a different state. State laws also make nonsupport of a spouse or child a criminal offense, and uniform laws now give states the power to detain and surrender individuals who are wanted for criminal nonsupport in another state.

Property distribution is frequently contested in modern divorce proceedings. Commonly disputed property includes real estate, PERSONAL PROPERTY, cash savings, stocks, bonds, savings

A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce.

plans, and retirement benefits. The statutes that govern property division vary by state, but they generally can be grouped into two types: equitable distribution and COMMUNITY PROPERTY. Most states follow the equitable-distribution method. Generally, this method provides that courts divide a divorcing couple's assets in a fair and equitable manner, given the particular circumstances of the case.

Some equitable-distribution states look to the conduct of the parties and permit findings of marital fault to affect property distribution. New Hampshire, Rhode Island, South Carolina, and Vermont have statutes that explicitly include both economic and marital misconduct as factors in the disposition of property. Connecticut, Florida, Maryland, Massachusetts, Missouri, Virginia, and Wyoming all consider marital conduct in property distribution. In Florida and Virginia, only fault relating to economic WELFARE is relevant in property distribution. Alaska, Kentucky, Minnesota, Montana, and Wisconsin expressly exclude marital misconduct from consideration in the disposition of marital property.

Equitable-distribution states generally give the court considerable discretion as to the division of property between the parties. The courts consider not only the joint assets held by the parties, but also separate assets that the parties either brought with them into the marriage or that they inherited or received as gifts during the marriage. Generally, if the separate property is kept separate during the marriage, and not commingled with joint assets like a joint bank account, then the court will recognize that it belongs separately to the individual spouse, and they will not divide it along with the marital assets. A minority of states, however, support the idea that all separate property of the parties becomes joint marital property upon marriage.

As for the division of marital assets, equitable-distribution states look to the monetary and nonmonetary contributions that each spouse made to the marriage. If one party made a greater contribution, the court may grant that party a greater share of the joint assets. Some states do not consider a professional degree earned by one spouse during the marriage to be a joint asset, but do acknowledge any financial support contributed by the other spouse, and they let that be reflected in the property distribution. Other states do consider a professional degree or license to be a joint marital asset and have devised various ways to distribute it or its benefits.

States that follow community-property laws provide that nearly all of the property that has been acquired during the marriage belongs to the marital "community," such that the husband and wife each have a one-half interest in it upon death or divorce. It is presumed that all property that has been acquired during the marriage by either spouse, including earned income, belongs to the community unless proved otherwise. Exceptions are made for property received as a gift or through inheritance, and for the property that each party brought into the marriage. Those types of property are considered separate and not part of the community. Upon divorce, each party keeps his or her own separate property, as well as half of the community property. True community property systems exist in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. Other states, such as Wisconsin, have adopted variations of the community-property laws.

ALIMONY, or spousal maintenance, is the financial support that one spouse provides to the other after divorce. It is separate from, and in addition to, the division of marital property. It can be either temporary or permanent. Its use originally arose from the common-law right of a wife to receive support from her husband. Under contemporary law, men and women are eligible for spousal maintenance. Factors that are relevant to an order of maintenance include the age and marketable skills of the intended recipient, the length of the marriage, and the income of both spouses.

Maintenance is most often used to provide temporary support to a spouse who was financially dependent on the other during the marriage. Temporary maintenance is designed to provide the necessary support for a spouse until he or she either remarries or becomes self-supporting. Many states allow courts to consider marital fault in determining whether, and how much, maintenance should be granted. These states include Connecticut, Georgia, Hawaii, Iowa, Kansas, Kentucky, Maine, Massachusetts, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wisconsin.

Like the entire body of divorce law, the issue of maintenance differs from state to state. If a spouse is found to have caused the breakup of the marriage, Georgia, North Carolina, Virginia, and West Virginia allow a court to refuse maintenance, even if that spouse was financially dependent on the other. North Carolina requires a showing of the supporting spouse's fault before awarding maintenance. Illinois allows fault grounds for divorce but excludes consideration of fault in maintenance and property settlements. Florida offers only no-fault grounds for divorce but admits evidence of adultery in maintenance determinations.

An antenuptial agreement, or PREMARITAL AGREEMENT, is a contract between persons who plan to marry, concerning property rights upon divorce. A postnuptial agreement is a contract entered into by divorcing parties before they reach court. Traditionally, antenuptial agreements were discouraged by state legislatures and courts as being contrary to the public policy in favor of lifetime marriage. An antenuptial agreement is made under the assumption that the marriage may not last forever, which suggests that it facilitates divorce. No state expressly prohibits antenuptial agreements, but, as in any contract case, courts reserve the right to void any that it finds UNCONSCIONABLE or to have been made under duress.

State statutes that authorize antenuptial and postnuptial agreements usually require that the parties fulfill certain conditions. In Delaware, for example, a man and a woman may execute an antenuptial agreement in the presence of two witnesses at least ten days before their marriage. Such an agreement, if notarized, may be filed as a deed with the office of the recorder in any county of the state (Del. Code Ann. tit. 13, § 301). Both antenuptial and postnuptial contracts concerning real estate must be recorded in the registry of deeds where the land is situated (§ 302).

Jurisdiction over a divorce case is usually determined by residency. That is, a divorcing spouse is required to bring the divorce action in the state where he or she maintains a permanent home. States are obligated to acknowledge a divorce that was obtained in another state. This rule derives from the FULL FAITH AND CREDIT CLAUSE of the U.S. Constitution (art. IV, § 1), which requires states to recognize the valid laws and court orders of other states. However, if the divorce was originally granted by a court with no jurisdictional authority, a state is free to disregard it.

In a divorce proceeding where one spouse is not present (an ex parte proceeding), the divorce is given full recognition if the spouse received proper notice and the original divorce forum was the bona fide domicile of the divorcing spouse. However, a second state may reject the divorce decree if it finds that the divorce forum was improper.

State courts are not constitutionally required to recognize divorce judgments granted in foreign countries. A U.S. citizen who leaves the country to evade divorce laws will not be protected if the foreign divorce is subsequently challenged. However, where the foreign divorce court had valid jurisdiction over both parties, most U.S. courts will recognize the foreign court's decree.

The only way that an individual may obtain a divorce is through the state. Therefore, under the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT to the U.S. Constitution, a state must make divorce available to everyone. If a party seeking divorce cannot afford the court expenses, filing fees, and costs associated with the serving or publication of legal papers, the party may file for divorce free of charge. Most states offer mediation as an alternative to court appearance. Mediation is less expensive and less adversarial than appearing in public court.

In January 1994, the American Bar Association Standing Committee on the Delivery of Legal Services published a report entitled Responding to the Needs of the Self-Represented Divorce Litigant. The committee recognized that a growing number of persons are divorcing pro se, or without the benefit of an attorney. Some of these persons are pro se litigants by choice, but many want the assistance of an attorney and are unable to afford one. In response to this trend, the committee offered several ideas to the state bar associations and state legislatures, including the formation of simplified divorce pleadings and the passage of plainly worded statutes. The committee also endorsed the creation of courthouse day care for children of divorcing spouses, night-court divorce sessions, and workshop clinics that give instruction to pro se divorce litigants. Many such programs are currently operating at district, county, and family courts around the United States.

In the United States, divorce law consists of 51 different sets of conditions—one for each state and the District of Columbia. Each state holds dear its power to regulate domestic relations, and peculiar divorce laws abound. Nevertheless, divorce law in most states has evolved to recognize the difference between regulating the actual decision to divorce and regulating the practical ramifications of such a decision, such as property distribution, support obligations, and child custody. Most courts ignore marital fault in determining whether to grant a divorce, but many still consider it in setting future obligations between the parties. To determine the exact nature of the rights and duties relating to a divorce, one must consult the relevant statutes for the state in which the divorce is filed.