Divorce

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Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse, which 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, child custody and distribution of property.

In many developed countries, divorce rates have increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, 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, which is also the case in the Philippines). In the USA, Canada, the United Kingdom and some other developed Commonwealth countries, this boom in divorce developed in the last half of the twentieth century. Japan retains a markedly lower divorce rate, though it has increased in recent years. In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage as there is little remaining social stigma attached to unwed mothers in some societies. The subject of divorce as a social phenomenon is an important research topic in sociology.

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 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. A less adversarial approach to divorce settlements has also emerged in recent years, known as family mediation, an attempt to negotiate mutually acceptable resolution to conflicts.

Contents

[edit] Statistics

The divorce rate is low among Muslims compared to other groups; some think that the rate is slowly rising. For example: in 2004 in Singapore (which has an 18% Muslim population) many feared that the divorce rate among Muslims had risen too high: 9 out of every 1000 marriages, a ratio three times higher than Malaysia and five times higher than Indonesia[1].

In the United States, [2] in 2003 there were 7.5 new marriages per 1000 people and 3.8 divorces per 1000, a ratio which has existed for many individual years since the 1960s. As many statisticians have pointed out, virtually none of the marriages taking place in a given year are the same couples divorcing that year, so there is in fact no predictive relationship between the two annual totals. Nonetheless the claim that "half of all marriages end in divorce" became widely accepted in the US in the 1970s, on the basis of this statistic, and has remained conventional wisdom. Pollster Lewis Harris in his 1987 book "Inside America" wrote that "the idea that half of American marriages are doomed is one of the most specious pieces of statistical nonsense ever perpetuated in modern times."

To establish an actual divorce rate requires tracking and analyzing significant samples of actual marriages through decades, not an easy task. Recent US scholarship based on such longterm tracking, reported for example in the New York Times on April 19, 2005, has found that about 60 percent of all marriages that result in divorce do so in the first decade, and more than 80 percent do so within the first 20 years; that the percentage of all marriages that eventually end in divorce peaked in the United States at about 41 percent around 1980 and has been slowly declining ever since, standing by 2002 at around 31 percent; and that while in the 1960s and 1970s there was little difference among socioeconomic groups in divorce rates, diverging trends appeared starting around 1980 (e.g. the rate of divorce among college graduates had by 2002 dropped to near 20 percent, roughly half that of non-college graduates).

[3] "Number, Timing, and Duration of Marriages and Divorces: 2001", U.S. Census Bureau report released February 2005.

[4] [5] "Education and Marital Dissolution Rates in the U.S. since the 1970s" by Dr. Steven P. Martin, assistant professor of sociology at the University of Maryland, available online as a Powerpoint presentation or the full report.

Many in the US are under the impression that the decades following introduction of no-fault divorce laws saw an extraordinary increase in divorce rates, though more recent research has clarified that US divorce rates had been generally rising since the 1890s (with a short-term decline during the Great Depression and a spike just after World War II). The long-term rate of increase steepened with the advent of no-fault divorce laws in the late 1960s; the gradual decline starting in the early 1980s has continued for a quarter-century thus far.

According to [Brinig 2000], 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.

States in the US handle billions of dollars in alimony and child support arrangements, which commonly result from divorces. (According to a 2003 US census report, 43.7 percent of custodial mothers and 56.2 percent of custodial fathers, are divorced or separated.) A 2005 Census Bureau Report found that in 2002, $40 billion had been paid in support arrangements by 7.8 million payers, 84% of whom were men. States also collected federal incentives to collect support payments, with a potential incentive pool of up to $454 million in fiscal 2004. A media kit for the National Child Support Enforcement Association, a child support advocacy group, claims that 60,000 professionals work to administer and enforce child support arrangements.

[edit] History of divorce

Divorce existed in antiquity. The ancient Athenians liberally allowed divorce, but the person requesting divorce had to submit the request to a magistrate and the magistrate could determine 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 be free") and either husband or wife could renounce the marriage at will. This unlimited freedom to divorce continued in western society until the ninth or tenth century of the Christian era, when it was 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.

Although divorce, as known today, was generally prohibited after the tenth 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 did not 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 eighteenth 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 authorites 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.

[edit] Canada

Divorce was not recognized in Canada until the 1960s. Before that time, the only way to get divorced was to apply to the Canadian Senate where a special committee would undertake an investigation of a request for a divorce and if they found that the request had merit, the marriage would be dissolved by an Act of Parliament.

Divorce (in Civil Jurisprudence) - Article in the 1908 Catholic Encyclopedia

[edit] Great Britain

[edit] Scotland

Until 1560, the law of marriage in Scotland was governed by Canon Law, which did not recognise divorce. In 1560, however, papal authority within Scotland was abolished by Act of Parliament and the common law recognised divorce for adultery. Statutory changes in 1573 recognized desertion as an additional ground for divorce. Thereafter, until 1830, the law was judicially developed by the Commissary Court of Edinburgh. Jurisdiction over divorce actions passed to the Court of Session in 1830, but the grounds for divorce remained as before, until the concept of the matrimonial offence developed. The Divorce (Scotland) Act 1938 recognised cruelty, sodomy, and bestiality as additional grounds for divorce; the concept of no-fault divorce was introduced in the same Act with the addition of ‘incurable insanity’ as a ground.

Growing recognition that ‘fault’ was not necessarily at the root of marriage breakdown led to the passage of the Divorce (Scotland) Act 1976, which provided that ‘irretrievable breakdown’ was the sole ground of divorce; but, contradictorily, went on to provide that this could only be evidenced by one of five sets of facts: adultery, desertion, unreasonable behaviour, two years separation plus the defenders consent to divorce, or five years separation. The third of these came to be so generously interpreted by the courts as to form the most popular ground for divorce for a time. Subsequently, the Sheriff Court acquired a concurrent jurisdiction in divorce actions; and the introduction of ‘do-it-yourself’ divorce has led to a situation in which the vast majority of divorces in Scotland are uncontentious; the very few exceptions mostly being those in which there is financial argument.

[edit] England and Wales

Legal recognition of divorce came later in England than in Scotland. Before 1670, only ecclesiastical courts could dissolve a marriage by finding that the marriage did not exist because of an inability to consent (e.g., insanity) or lack of capacity to marry (e.g., precontract, consanguinity, the two parties were related by a previous marriage). A marriage could also be ended if one of the parties was impotent or frigid when the marriage was contracted. It was also possible to obtain a legal separation (known as "divorce a mensa et thoro" (from board and hearth)). Grounds for the separation included adultery, cruelty and heresy. The grant of legal separation meant that offspring of the couple were not rendered illegitimate, but neither spouse could marry another until one of the two died. In his 1990 work on the subject, Road to Divorce: England 1530-1987, the late historian Lawrence Stone was one of the first to point out that the legal barriers to divorce were not an absolute bar to remarriage, since the short life expectancy of the time guaranteed that one spouse would certainly outlive the other (and would soon be free to marry again). If a prior marriage was found void ab initio, then both parties could freely remarry, since their "marriage" was not, in fact, valid.

In the 1530s, Henry VIII decided that he wished to divorce his first wife, Catherine of Aragon, on the grounds of affinity; he argued that, since Catherine was his brother's widow, the marriage had never really existed. Catherine claimed that her marriage to Arthur had never been properly consummated. In 1533, Thomas Cranmer was appointed Archbishop of Canterbury and he declared that Henry's marriage to Catherine was void, effectively bastardizing their daughter Mary (later Mary I). In 1536, Cranmer similarly declared Henry's marriage to Anne Boleyn void, most probably due to Henry's previous relationship with Anne's sister Mary Boleyn. Cranmer tried to reform the Church of England's Canon Law so that it allowed divorce for adultery, cruelty, and desertion, but these changes were not implemented. Because the Holy See had no provision in canon law to find the marriage of Henry VIII and Catherine of Aragon invalid which led to the Reformation in England.

Following Lord Roos's divorce on the grounds of adultery in 1670, the procedure for divorce in English law went as follows: first the husband brought an action for "criminal conversation" to establish the adultery, then he obtained a divorce a mensa et thoro from the church and then finally he petitioned the House of Lords to grant the divorce.

In 1853, a Royal Commission made recommendations on how to improve the procedure of getting a divorce. In 1857, the Court for Divorce and Matrimonial Causes, based in London, was established, taking over the divorce duties of the church courts. Men could obtain divorce for adultery, but women had to prove cruelty or desertion, in addition to their husband's adultery. In 1923, women were allowed to use the same grounds for divorce as men. In 1969, after much debate, 'irretrievable breakdown', on the basis of one of five grounds became the test for divorce.

[edit] Causes of divorce

An annual study in the UK by management consultants Grant Thornton, estimates the main causes of divorce based on surveys of matrimonial lawyers (see [6]).

The main causes in 2004 (2003) were:

  • Extra-marital 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. Therefore if you live in France but were married in England you should bring the proceedings in France.

[edit] 21st Century divorce

Until the advent of online commerce most divorces were handled by Solicitors, however a number of online divorce services have been operating for many years, cutting the costs of divorce. Online divorce could account for about 1 in 5 of all divorces filed in England and Wales if statistics are to be believed. One of the first companies to provide online divorce is the appropriately titled *Divorce-Online

There are now internet based divorce services all over the world, the majority being in English speaking countries such as the UK, USA and the commonwealth.

[edit] Religious/cultural attitudes to divorce

Many countries in Europe, such as France prohibited divorce as it is not condoned by the Catholic church. Sometimes citizens travelled to other jurisdictions to obtain a divorce.

In Islam, divorce is allowed, although discouraged. A commonly mentioned Islamic ruling is that divorce is the least liked of all permissible acts. Only the husband can decide to have a no-fault divorce. Under Sharia law, a husband may repeat a declaration of divorce three times. A man may have up to four wives under Sharia law.

Islam considers marriage to be a legal contract; and the act of obtaining a divorce is essentially the act of legally dissolving the contract. If a man pronounces three divorces against a free woman, or two against a slave, he can lawfully wed neither of them again, unless they have been espoused by another.

Judaism recognized the concept of "no-fault" divorce thousands of years ago. Judaism has always accepted divorce as a fact of life (for example, see Deuteronomy chapters 22 and 24), albeit an unfortunate one. Judaism generally maintains that it is better for a couple to divorce than to remain together in a state of constant bitterness and strife. Also see [7] and Get in the Conflict of Laws.

Within Christianity, divorce has become almost commonplace, and the interpretation of the Holy Scripture on divorce widely varies among Christian denominations. However, the first 400 years of the Early Church, the church maintained a unanimous voice opposing divorce.

Bible commentary on divorce comes primarily from the gospels of Matthew, Mark and Paul. Although Jesus touched on the subject of divorce in three of the Gospels, Paul gives a rather extensive treatment of the subject in his First Epistle to the Corinthians chapter 7: "Now, for those who are married I have a command that comes not from me, but from the Lord. A wife must not leave her husband. But if she does leave him, let her remain single or else go back to him. And the husband must not leave his wife." (1 Corinthians 7:10-11), but he also includes the Pauline privilege. He again alludes to his position on divorce in his Epistle to the Romans, albeit an allegory, when he states "Let me illustrate. When a woman marries, the law binds her to her husband as long as he is alive. But if he dies, the laws of marriage no longer apply to her. So while her husband is alive, she would be committing adultery if she married another man. But if her husband dies, she is free from that law and does not commit adultery when she remarries." (Romans 7:2-3).

Recent research, however, interprets the words of Jesus and Paul through the eyes of first century readers who knew about the ‘Any Cause’ divorce, which Jesus was asked about ("Is it lawful to divorce for ‘Any Cause’" ­ (Template:Bibleref). This suggests that Christians in the generations following Jesus forgot about the ‘Any Cause’ divorce and misunderstood Jesus.

The 'Any Cause' divorce was invented by some Pharisees who divided up the phrase "a cause of indecency" (Deuteronomy 24.1) into two grounds for divorce: "indecency" (porneia which they interpreted as ‘Adultery’) and "a cause" (ie ‘Any Cause’). Jesus said the phrase could not be split up and that it meant "nothing except porneia". Although almost everyone was using this new type of divorce, Jesus told them that it was invalid, so remarriage was adulterous because they were still married.

The Old Testament allowed divorce for the breaking of marriage vows, including neglect and abuse, based on Exod.21.10f. Jesus was not asked about these Biblical grounds for divorce, though Paul alluded to them in 1 Corinthians 7 as the basis of marriage obligations.

This new research emphasizes that Jesus and Paul never repealed these Biblical grounds based on marriage vows. They were exemplified by Christ (according to Ephesians 5.28f) and they became the basis of Christian marriage vows (love, honour, and keep).

Both Jesus and his 12 Apostles recognized the fact that due the difficulties of a secular marriage, it might be better to never be married at all, as said in Template:Bibleref.

Dharmic religions do not have a concept of divorce. However, the Hindu Marriage Act, 1955 applicable to Hindus, Buddhists, Sikhs and Jains in India does have provisions for divorce under some circumstances.

[edit] See also

[edit] Divorce's financial implications

Divorce leads to the creation of two households rather than one, with consequent increased costs. All parties suffer these effects. As more men are awarded child custody, many of the roles and difficulties described below may be reversed, although men who are awarded custody have historically been less likely to be awarded child support or alimony.

Women often financially suffer as a result of divorce due to lower earning potential in many countries, and to their greater historical role in rearing children (these causes are not unrelated). They more often obtain custody of children after the divorce, reducing their ability to pursue well-paid employment. Child support collection is a major problem: some fathers do not accept that they have an obligation towards their children, while others accept such an obligation but cannot fulfill it. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See single mother for details.

Men are also often victims of divorce, both financially and in other ways. Court-ordered alimony and child support can be beggaring, often pegged to large percentages of the higher-earning spouse's income. Such obligations can make it impossible for paying spouses to remarry, and if they do remarry, the law often puts the payor's prior obligations before his and his new family's needs. Groups such as Families Need Fathers claim that non-custodial spouses (more often men) are often blocked from access to their children.

Currently in the US, federal law makes non-payment of child support a felony, whereas refusal to honor court-ordered visitation decision is not, and seldom results in any punishment or compulsion to change. Additionally the Bradley Amendment revoked due process for support-paying parents, removing the ability of judges to reduce child support obligations in cases of unemployment, state statutes of limitations, bankruptcy, incapacitation or other extremity.

In the US, a spouse who resides in a community property state and lacks a prenuptial agreement can be at a disadvantage if he or she earns more than the other spouse. In these states, the property is split 50/50 regardless of who earned the money. This is true even if the poorer spouse has committed adultery or initiates the divorce. On the other hand, less tangible assets such as putting a spouse through school or providing a good home are difficult to value in dollars, and a spouse whose contributions are less tangible can also be disadvantaged.

Most states in the US are not community property states; several large and populous ones such as California, along with a few smaller ones, are. Some states instead impose a standard of "equitable" rather than equal division, attempting to address the many complexities involved in separating out years of financial sharing. In such states judges have greater power to balance various contributions to the marriage.

Another significant financial implication of divorce is the actual cost of the divorce itself. Attorneys fees can be very significant at a time when the spouses' resources are already stretched quite thin. For example see this article on attorneys fees.

A prenuptial agreement before marriage can reduce conflict over financial division should a divorce be undertaken later, although courts can overturn these agreements as too severely imbalanced, signed under duress, or violating the best interests of the children.

[edit] Divorce's medical and psychological implications

Recent sociological studies have pointed to a variety of long-term economic, social, physical, and mental health consequences of divorce, although the full extent of such effects remains hotly debated. All the studies to date suffer from an inherent methodological weakness which researchers have not yet found a solution to: establishing the relevant baseline for comparisons. By definition, all divorces are of unhappy couples; meanwhile, those who do not divorce are some mix of happy couples and of unhappy ones who stayed married. Comparisons of life outcomes or well-being along the simple divorced/not divorced axis will therefore always show poorer outcomes for the group which is composed entirely of unhappy couples, demonstrating simply that being part of a happy couple is better than being part of an unhappy one.

Any list of formal sociological articles on aftereffects of divorce would quickly become obsolete, but among the more accessible books are [Wallerstein 2000] (reports long-term negative effects of divorce on children) and [Hetherington 2002] (reports that not all kids fare so badly, and that divorce can actually help children living in high-conflict homes such as those with domestic violence).

Recent longtitudinal studies have reported that some divorced people are no happier after divorce. University of Chicago sociologist Linda Waite [Waite 2003] analyzed the relationships between marriage, divorce and happiness using the National Survey of Family and Households. She reported that unhappily married adults who had divorced were no happier than those who had stayed married. Some studies report that cohabitation before marriage is correlated with an increased divorce rate [Bramlett 2001].

Attempts to assess the impact of divorce on children are inherently compromised by the same methodological problem as with adults: establishing the relevant baseline for comparisons. By definition, virtually all children of divorce are from unhappy families; meanwhile, children whose parents never divorced are from some mix of happy families and unhappy ones (parents who stayed married despite an unhappy marital relationship). Comparisons of life outcomes or well-being along the simple divorced/not divorced axis naturally always show poorer outcomes for the group that is composed entirely of children of unhappy families, demonstrating simply that being the child of happy parents is better than being the child of unhappy ones. The actual question of interest is whether being a child of unhappy parents who divorce is better or worse than being a child of unhappy parents who do not divorce. Establishing data for that comparison would require being able to identify with reasonable certainty the subset of nondivorced parents who are nonetheless deeply unhappy with each other, something no researcher has found a way to do at a meaningful scale.

From work that has been done along the flawed axis described above, it was until recently generally assumed that children's difficulties with divorce, while common, were short-lived. However, recent authors have argued that a major cost to children comes long after: when they attempt to form stable marriages themselves. There is extensive and heated debate over just how much harm, just how many children are harmed to what extent, what factors mediate the harm, and so on. Mavis Hetherington [Hetherington 2002] (a University of Virginia professor) reports that 70% of children coming from divorced families consider divorce an adequate answer to marital problems (even if children are present), compared to only 40% of children from non-divorced families.

Children of divorced parents (those entirely from unhappy families) are reported to have a higher chance of behavioral problems than those of non-divorced parents (a mix of happy and unhappy families). Studies have also reported the former to be more likely to suffer abuse than children in intact families, and to have a greater chance of living in poverty [Fagan 2000]. [Troxel 2002] discusses a variety of health consequences for children of the unhappy couples that do divorce.

Constance Ahron, who has published books suggesting there may be positive effects for children, interviewed ninety-eight divorced families' children for We're Still Family: What Grown Children Have to Say About Their Parents' Divorce [Ahron 2004]. Since by definition all children of divorced parents had lived in unhappy homes, they unsurprisingly reported numerous unhappy experiences. Numerous subjects said things like "I saw some of the things my parents did and know not to do that in my marriage and see the way they treated each other and know not to do that to my spouse and my children. I know [the divorce] has made me more committed to my husband and my children." Ahron's method of asking adult children of divorce how they feel about it also has the well-known weaknesses of "self-report" studies.

Researchers have reported that in cases of extremely high conflict, divorce can be positive. An article in the Oklahoma Bar Journal [Bartlett 2004] defines "high conflict" in terms of ongoing litigation, anger and distress, verbal abuse, physical aggression or threats of physical aggression, difficulty in communicating about and cooperating in child care, or other court-determined factors.

Various studies have claimed that people who have been in divorced families:

  • have higher rates of alcoholism and other substance abuse compared to those who have never been divorced. Robert H. Coombs, Professor of Behavioral Sciences at UCLA, reviewed over 130 studies measuring how marital status affects personal well-being. They "attest that married people live longer and generally are more emotionally and physically healthy than the unmarried." Also, "studies consistently found more alcoholism and problem drinking among the unmarried than the married." The separated and divorced account for 70% of all chronic problem drinkers, and marrieds 15% [Coombs 1991].
  • have higher rates of clinical depression. "Family disruption and low socioeconomic status in early childhood increase the long-term risk for major depression" [Gilman 2003].
  • seek formal psychiatric care at higher rates. Studies vary, suggesting from 5 to 21 times the risk, and vary over whether men or women are more seriously affected [Marks 1998] and [Bloom 1979].
  • in the case of men, are more likely to commit suicide at some point in their lives, according to a study by Augustine Kposowa, a University of California at Riverside sociologist [Kposowa 2003]. This study quantified earlier work [Kposowa 2000] that estimated an increased risk of 2.7 times for men.
  • have lower life expectancies overall [see [Smock 1993], [US Bureau of the Census 1991], [Dickson 1993], [Arendell 1995], [Amato 1991], and [Joung 1994].
  • are more likely to live in poverty [McLanahan 1994].

Studies have also claimed positive correlations between divorce and rates of:

  • stroke See [Engstrom 2004]: "Marital dissolution is followed by an increased incidence of stroke."
  • cancer. Married cancer patients are also more likely to recover than divorced ones [Goodwin 1987].
  • acute infectious diseases, parasitic diseases, respiratory illnesses, digestive illnesses, and severe injuries. See [Lawson 2000]. In support of these particular claims, that article cites [US Bureau of the Census 1991] and [Albrecht 1980].
  • heart problems. Some research suggests that childhood trauma, including parental divorce, can lead to much greater risk of heart attack in later life. See [O'Rand 2005]. Combined with job stress, divorce led to a 69% increase of death rate among men with above average risk of heart disease [Reuters 2002].
  • rheumatoid arthritis and osteoarthritis. [Mili 2002] shows a 30% increase in risk at any given age. [Kopec 2003] finds that parental divorce leads to increased risk of arthritis for children later in life.
  • sexually transmitted diseases. For example, in Uganda "Results from a baseline survey of HIV-1 infection in the cohort of over 4,000 adults (over 12 years old) showed a twofold increase in risk of infection in divorced or separated persons when compared with those who are married." [Nabaitu 1994].

[Wallerstein 2000], which reported some of these effects, was at first criticized because the subjects were all drawn from an affluent section of California rather than a broader sample. This is a real issue. However, more recent studies have repeated her conclusions and sometimes shown that her sample group was actually better off than average; of course those studies also suffered from the same broader methodological flaw described here. Families with lower income and education levels did somewhat worse than more advantaged subjects in Wallerstein's study.

[edit] Legal aspects of divorce

[edit] Muslim societies

No-fault divorce is allowed in Islam, although Islam discourages divorce.

If the man seeks divorce or was divorced, he has to cover the expenses of his ex-wife feeding his child and expenses of the child until the child is two years old (that is if the child is under two years old). The child is still the child of the couple despite of the divorce.

If it is the wife who seeks divorce, she must go to a court. She must provide evidence of ill treatment, inability to sustain her financially, sexual impotence on the part of the husband, her dislike of his looks, etc. The husband may be given time to fix the problem, but if he fails, the appointed judge will divorce the couple if the couple still wish to be divorced. [8].

See also: Talaq in Conflict of Laws, At-Talaq and Triple talaq.

[edit] United States

Divorce in the United States is a matter of state rather than federal law. In recent years, however, more 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 had to show a cause such as 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).

Typically, a county court’s family division judges petitions for dissolution of marriages. [9] [10] 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 except New York 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, most states require some waiting period, typically a 1 to 2 year 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 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 this writing.

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 a growing way of resolving divorce issues. It tends to be less adversarial (particularly important for any children), allows the parties greater control and privacy, saves money, and generally achieves similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly [Hoffman 1999]. A new movement towards Collaborative Law, where both sides are represented by attorneys but commit to negotiating a settlement and refraining from litigation, is also gaining momentum. If the parties and their collaborative law attorneys fail to reach a settlement, the collaborative lawyers are replaced by new counsel on the theory that the first set of lawyers will try harder if they know they will be "fired" if the dispute has to be resolved by a judge. Relatively amicable approaches such as this may reduce the trauma of divorce for all parties. Most experts agree that these methods are not 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.

Hostile divorces, in contrast, can be expensive both financially and emotionally. Fault grounds can be unpleasant enough when true, and may sometimes be falsely alleged, as may anything else that an unethical spouse can think of. In the 1990s, heated debate arose over accusations of domestic violence and of child sexual abuse arising in the course of hostile divorces. Some found a rapid increase in such charges and in the percentage of them eventually that were found baseless; others found there to be no such problems. It is unlikely the truth will ever be fully known.

States vary in their rules for division of assets in a divorce. Some states are "community property" states, while others are "equitable distribution" states. "Community property" states start with the presumption that 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 21st birthday. 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. Connecticut, for instance grants alimony in over 25% of cases. Alimony is also 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 marriages that exceed 12 years.

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, 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 (see BBC News June 23, 1999 [11]. However, these are not properly "divorce" cases, and different laws apply.

[edit] Canada

In Canada, while civil and political rights are in the jurisdiction of the provinces, the Constitution of Canada specifically made marriage and divorce the realm of the federal government. Essentially this means that Canada's divorce law is uniform throughout Canada, even in Quebec, that differs from the other provinces in its use of the civil law as codified in the Civil Code of Quebec as opposed to the common law that is in force in the other provinces and generally interpreted in similar ways throughout the Anglo-Canadian provinces.

The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming. [12] The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated, since there is no such thing as a "legal separation" in Canada. [13] A couple can even be considered to be "separated" even if they are living in the same dwelling. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year.

On September 13, 2004, the Ontario Court of Appeal declared the Divorce Act also unconstitutional for excluding same-sex marriages, which at the time of the decision were recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a lesbian couple, to divorce. [14]

[edit] France

The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%).

[edit] Italy

Presumably due to the strong influence of the Roman Catholic Church, divorce was all but unobtainable in the Italian Republic and its predecessor states. The difficulty of ridding oneself of an unwanted spouse was a frequent a topic of drama and humor, reaching its apotheosis in the 1961 film Divorce, Italian Style. On December 1, 1970, the civil code of Italy was amended to permit the granting of divorces by the civil courts. Subsequent efforts at repealing the divorce statute by referendum were unsuccessful.

[edit] Japan

In Japan, there are four types of divorce. Divorce by Mutual Consent (kyogi rikon), Divorce by Family Court Mediation (chotei rikon), Divorce by Family court Judgement (shimpan rikon), and Divorce by District Court Judgment (saiban rikon).

Divorce by mutual consent is a simple process of submitting a declaration to the relevant government office that says both spouses agree to divorce. This form is often called the "Green Form" due to the wide green band across the top. If both parties fail to reach agreement on conditions of a Divorce By Mutual Consent, such as child custody which must be specified on the divorce form, then they must use one of the other three types of divorce. Another type may also be necessary, in the case of an international divorce; Japan's Divorce By Mutual Consent is not recognized by all countries.

Divorce by Mutual Consent in Japan differs from divorce in many other countries in that it is not always possible to verify the identity of the non Japanese spouse in the case of an international divorce. This is due to two facts. First, both spouses do not have to be present when submitting the divorce form to the government office. Second, a Japanese citizen must authorize the divorce form using a personal stamp (hanko), and Japan has a legal mechanism for registration of personal stamps. On the other hand, a non-Japanese citizen can authorize the divorce form with a signature. But there is no such legal registry for signatures, making forgery of the signature of a non-Japanese spouse difficult to prevent at best, and impossible to prevent without forsight. The only defense against such forgery is, before the forgery occurs, to submit yet another form to prevent a divorce form from being legally accepted by the government office at all. This form must be renewed every six months.

[edit] Scotland

About one third of marriages in Scotland end in divorce, on average after about thirteen years (‘Family Formation and Dissolution). Actions for divorce in Scotland may be brought in either the Sheriff Court or the Court of Session. In practice, it is only actions in which unusually large sums of money are in dispute, or with an international element, that are raised in the Court of Session. If, as is usual, there are no contentious issues, it is not necessary to employ a lawyer.

The grounds of divorce are, as described above, contained in the Divorce (Scotland) Act 1976. There have however been proposals for a number of years for their reform and simplification; see for example Scottish Law Commission report on Family Law no 135 and more recent proposals by the Scottish Executive. It is likely that the two year separation period required for a no-fault divorce with consent will be reduced to one year. Family law issues are devolved, so are now the responsibility of the Scottish Parliament and Scottish Executive.

Financial consequences of divorce are dealt with by the Family Law (Scotland) Act 1985. This provides for a division of matrimonial property on divorce. Matrimonial property is generally all the property acquired by the spouses during the marriage but before their separation, as well as housing and furnishings acquired for use as a home before the marriage, but excludes property gifted or inherited. Either party to the marriage can apply to the court for an order under the 1985 Act. The court can make orders for the payment of a capital sum, the transfer of property, the payment of periodical sums, and other incidental orders. In making an order, the court is, under the Act, guided by the following principles:

  1. The net value of the matrimonial property should be shared fairly, and the starting point is that it should be shared equally; but
  2. fair account should be taken of economic advantage derived by either party from contributions by the other, and of economic disadvantage suffered by either party in the interests of the other party or of the family; and
  3. The economic burden of caring for a child of the marriage under 16 years should be shared fairly between the parties (but child support is not normally awarded by the court, as this is in most cases a matter for the Child Support Agency).

The general approach of the Scottish courts is to settle financial issues by the award of a capital sum if at all possible, allowing for a ‘clean break’ settlement, but in some cases periodical allowances may be paid, usually for a limited period. Fault is not normally taken into account.

Decisions as to parental responsibilities, such as residence and contact orders, are dealt with under the Children (Scotland) Act 1995. The guiding principle is the best interests of the child, although the starting assumption is in practice that it is in a child’s best interests to maintain contact with the non-custodial parent.

[edit] England and Wales

Divorce is commenced by the issuing of a petition, which must be acknowledged by the other party. Whilst it is possible to defend a divorce, the vast majority proceed on an undefended basis. A decree of divorce is initially granted 'nisi', i.e. (unless cause is later shown), before it is made 'absolute'. Relevant laws are:

[edit] Global issues

Where people from different countries get married, and one or both then choose to reside in another country, the procedures for divorce can become significantly more complicated. Although most countries make divorce possible, the form of settlement or agreement following divorce may be very different depending on where the divorce takes place. In some countries there may be a bias towards the man regarding property settlements, and in others there may be a bias towards the woman, both concerning property, and also custody of any children. One or both parties may seek to divorce in a country which has jurisdiction over them. Normally there will be a residence requirement in the country in which the divorce takes place. Some of the more important aspects of divorce law involve the provisions for any children involved in the marriage, and problems may arise due to abduction of children by one parent, or restriction of contact rights to children. For the Conflict of Laws issues, see divorce (conflict).

[edit] Divorces obtained in a different country or jurisdiction

Due to the complex divorce procedures required in many places, especially including many states of the United States, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills."

There are four main reasons that people look to another jurisdiction for a divorce:

  • Many jurisdictions do not allow "irreconcilable differences" as a legal cause for divorce, and many require fault or a separation agreement in force for a year, such as New York State.
  • Many jurisdictions have complex and long residency requirements as well as paperwork.
  • Many jurisdictions take a long time to issue a finalized divorce, anywhere from 3 months to a year or even several in unique circumstances.
  • Finally, some people are simply out to get around 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.

Legal fees are not a reason people commonly consider this, as the legal fees alone are equal to or more than in any of the states in the US.

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 whom 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 only the case in a contested divorce, as in an uncontested divorce both spouses agree to the terms and sign off on the divorce; although in almost any if not all of these countries 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 if challenged, it is not illegal, as matrimonial law is civil 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.)

Thus, getting a contested divorce in another country is not likely to achieve the goals of the spouse requesting it, and is possible to even create a larger problem than before. An uncontested divorce is likely to be upheld in a court of law however, regardless of the general validity of contested divorces from these countries. While a "quick" contested divorce is likely if challenged to be declared invalid, it is traditionally not considered bigamy if you remarry as long as the obtainer believed the divorce to be valid.

There are 5 major jurisdictions people look towards for a divorce in another state or country:

Haiti, Mexico, and The Dominican Republic are fairly similar in this regard. These countries people typically go to get an overnight/long weekend divorce, or to get a quick and relatively painless contested divorce.

The State of Nevada is commonly used for a few reasons. It only requires a 6 week stay to meet the residency requirements, the lowest in the United States. One easy way to meet 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, which is generally the only way to obtain a no-fault divorce in many states without a one year legal separation agreement. Also, it has an extensive and straightforward system for marriage annulment, and attracts people who would prefer an annulment (which declares the marriage wasn't valid in the first place) than a divorce. 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.

Guam had (and still has some) very attractive reasons for obtaining a divorce there. Guam is a territory of the United States. 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. Prior to January 1, 2006, Guam allowed for an uncontested divorce without either spouse visiting the territory at all. After being charged as a "divorce mill", including by many in its own government, an agreement was made with the lawyers 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, and Guam is much quicker to award a finalized divorce than many US states, taking a few weeks at most. Before the law was changed, it was a very attractive alternative for many Americans, as it was also quite affordable. However, due to its location in Southeast Asia, a trip there would be very expensive and not a viable alternative for most Americans.

[edit] See also

[edit] References

  • Ahron, Constance. We're Still Family: What Grown Children Have to Say About Their Parents' Divorce Harper Collins, 2004. ISBN 0060193050.
  • Albrecht, S. L. "Reactions and adjustments to divorce: differences in the experiences of males and females. Family Relations 29 (1980): 59-70.
  • Arendell, T. "Fathers and divorce." Thousand Oaks, Calif: Sage Publications, 1995.
  • Amato, Paul R. and Alan Booth. A Generation at Risk: Growing Up in an Era of Family Upheaval. Harvard University Press, 1997. ISBN 0-674-29283-9 and ISBN 0-674-00398-5. Reviews and information at [15]
  • Amato, P. R. and B. Keith. "Parental divorce and adult wellbeing: A meta-analysis." Journal of Marriage and Family 53 (1991): 43-58.
  • Bartlett, Barbara Ann. "Parenting Coordination: A New Tool for Assisting High-Conflict Families." Oklahoma Bar Journal February 13, 2004. [16]
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  • Dickson, L. "The future of marriage and family in black America." Journal of Black Studies 1993; 23: 472-491
  • Engstrom G., F. A. Khan, E. Zia, I. Jerntorp, H. Pessah-Rasmussen, B. Norrving, and L. Janzon. "Marital dissolution is followed by an increased incidence of stroke." Cerebrovascular Disease 2004; 18(4): 318-24. [18]
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  • Kposowa, Augustine. "Marital status and suicide in the National Longitudinal Mortality Study Augustine J Kposowa." Journal of Epidemiology and Community Health 2000; 54:254-261. [22]. Cited in Sara Yang, "Men more likely to commit suicide after divorce, study finds." cnn.com, March 15, 2000."[23]
  • Kposawa, Augustine. "Divorce and suicide risk." Journal of Epidemiology and Community Health [24] 2003; 57: 993.
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  • McLanahan, Sara and Gary Sandefur. Growing Up with a Single Parent; What Hurts, What Helps. Cambridge: Harvard University Press, 1994: 82.
  • Mili, F., C. G. Helmick, M. M. Zack. "Prevalence of Arthritis: Analysis of Data from the US Behavioral Risk Factor Surveillance System, 1996-99." Journal of Rheumatology 2002; 29: 1981-1989. [26]
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  • Reuters online. Cited in "Stressful job, bad marriage ups man's death risk." Heart Center Online, February 12, 2002. [29] Cites as source, KA Matthews and BB Gump. "Chronic work stress and marital dissolution increase risk of posttrial mortality in men". Archives of Internal Medicine 2002; 162: 309-315. [30]
  • Smock, Pamela J. "The Economic Costs of Marital Disruption for Young Women over the Past Two Decades." Demography 1993; 30: 353-371.
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  • Waite, Linda J., Don Browning, William J. Doherty, Maggie Gallagher, Ye Luo, and Scott M. Stanley. "Does Divorce Make People Happy? Findings from a Study of Unhappy Marriages." 2003. [34]
  • Wallerstein, Judith S., Julia M. Lewis, and Sandra Blakeslee The Unexpected Legacy of Divorce: The 25 Year Landmark Study. Hyperion, 2000. ISBN 0786863943.

[edit] External links

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