Divorce or dissolution of marriage is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the status of being single and permitting them to marry other individuals. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.
In some jurisdictions divorce does not require a party to claim fault of their partner that leads to the breakdown of marriage. But even in jurisdictions which have adopted the "no fault" principle in divorce proceedings, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support.
In most jurisdictions, a divorce must be certified by a court of law to become effective. The terms of the divorce are usually determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses may have agreed to privately. In the absence of agreement, a contested divorce may be stressful to the spouses and lead to expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts.
In cases involving children, governments have a pressing interest in ensuring that disputes between parents do not spill over into the family courts. One way of doing this is through the encouragement of a parenting plan. In the United States, all states now require parents to file a parenting plan when they legally separate or divorce.
Types of divorce
Though divorce laws vary between jurisdiction, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support.
Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.
No-fault divorce
Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party. Forty-nine states of the United States have adopted no-fault divorce laws, with grounds for divorce including incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.
At-fault divorce
Fault divorces used to be the only way to break a marriage, and people who had differences, but did not qualify as "at fault", only had the option to separate (and were prevented from legally remarrying).
New York is the only state that still requires fault for a divorce (unless separated for a year or longer).
However there are ways (defenses) to prevent a fault divorce:
- Collusion
- Condonation
- Connivance
- Provocation
A defense is expensive, and not usually practical as eventually most divorces are granted.
Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.
Summary divorce
A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.
Key factors:
- Short marriage (under 5 years)
- No children (or, in some states, they have resolved custody and set child support payments)
- Minimal or no real property (no mortgage)
- Marital property is under a threshold (around $35,000 not including vehicles)
- Each spouse's personal property is under a threshold (typically the same as marital property)
Uncontested divorce
It is estimated that upwards of 95% of divorces in the US are "uncontested," because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property, deal with the custody of their children.
Collaborative divorce
Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support. Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot later be used in further legal proceedings, as the collaborative process is confidential proceedings. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.
Mediated divorce
Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the husband and wife by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include the party's attorneys or a neutral attorney or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted without attorneys. Divorce mediators may be attorneys who have experience in divorce cases. Divorce mediation can be significantly less expensive than litigation. . The adherence rate to mediated agreements is much higher than that of adherence to court orders.
Civil Courts
Civil courts gradually assumed greater involvement in the issues arising from the breakdown of marriage on the basis that a marriage was a civil contract. However, the grounds and precedents of the ecclesiastic courts were adopted by civil courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce, and now considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse." If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage." Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or “extreme cruelty.”
Statistics (U.S.)
Initiation
The National Center for Health Statistics reports that from 1975 to 1988 in the US, in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women.
According to a study published in the American Law and Economics Review, women currently file slightly more than two-thirds of divorce cases in the US. There is some variation among states, and the numbers have also varied over time, with about 60% of filings by women in most of the 19th century, and over 70% by women in some states just after no-fault divorce was introduced, according to the paper.
Custody
In their study titled "Child Custody Policies and Divorce Rates in the US," Kuhn and Guidubaldi find it reasonable to conclude that women anticipate advantages to being single, rather than remaining married.
When women anticipate a clear gender bias in the courts regarding custody, they expect to be the primary residential parent for the children and recipient of the resulting financial child support, maintaining the marital residence, receiving half of all marital property, and gaining total freedom to establish new social relationships. In their detailed analysis of divorce rates, Kuhn and Guidubaldi conclude that acceptance of joint p
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