Dictionary:

divorce

  (dĭ-vôrs', -vōrs')

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1. The legal dissolution of a marriage.
2. A complete or radical severance of closely connected things.

1. To dissolve the marriage bond between.
2. To end marriage with (one's spouse) by way of legal divorce.
3. To cut off; separate or disunite: an idea that was completely divorced from reality. See synonyms at separate.

To obtain a divorce.

[Middle English, from Old French, from Latin dīvortium, from dīvortere, to divert, variant of dīvertere. See divert.]

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Legal termination of a marriage. The tax benefits of the personal exemption claimed for a child are phased out as income increases. Thus only the lower income parent benefits from the personal exemption deduction. The party making an alimony payment can deduct it for tax purposes. The recipient reports it as taxable income. No gain or loss is recognized on a transfer of property incident to a divorce. Such transfers are treated as gifts, with the transferee taking the transferor's adjusted basis in the property. The gain on the property is taxed only when sold.

noun

The act or an instance of separating one thing from another: detachment, disjunction, disjuncture, disseverance, disseverment, disunion, division, divorcement, parting, partition, separation, severance, split. See assemble/disassemble, part/whole.

verb

To become or cause to become apart one from another: break, detach, disjoin, disjoint, disunite, divide, part, separate, split (up). Idioms: part company, set at odds. See assemble/disassemble.

Definition: split-up of marriage
Antonyms: marriage

v

Definition: split up a marriage
Antonyms: marry

Definition

Divorce is the legal termination of a marriage.

Description

More than 1 million children each year experience their parents' divorce. Less than 60 percent of American children live with both of their biological parents; about 25 percent live with their biological mother only; and about 4 percent live with their biological father only. The remaining 11 percent live with step-families, adoptive parents, foster homes, or with other relatives.

In 2002 it was estimated that up to 30 percent (19.8 million) of children in the United States, representing 11.9 million families, lived in single-parent households. While the number of single mothers has remained constant through the 1990s and into the early 2000s at 9.9 million, the number of single fathers has grown from 1.7 million in 1995 to 2 million in 2002, according to data from the U.S. Census Bureau. In 2002, 19.8 million children lived with one parent. Of these, 16.5 million lived with their mother and 3.3 million with their father.

In 2002, fewer than half of single-parent children under the age of 18 received any financial support from the non-custodial parent. The income of more than one third of these households fell below the poverty level. The term "deadbeat dads" is often used in discussions about abandonment because most of the divorced parents who do not contribute financially to support their offspring are fathers.

Even though divorce rates peaked in 1979–81 and decreased slightly in the years following, half of all first marriages and 60 percent of second marriages end in divorce. The divorce process is often more emotionally traumatic for the children than for the parents, because children are less able to cope with the separation. About half of all children do not see their fathers following a divorce and only a small percentage have spent the night in their fathers' homes in any given month.

Divorce is the termination of the family as a unit. The effects of divorce on children can usually be seen long before the divorce itself, when conflict between the parents can cause behavior changes in the children, even in preschoolers. After the divorce, the children's sense of loss often increases, leading to great sadness, depression, and anxieties, especially on special occasions, such as birthdays, holidays, and school events. The children's emotions depend on their age, but common feelings include sadness, anger, and fear. Often these feelings are manifested in behavior changes that are also age-related. Children may grieve the loss of the "traditional" family, and they mourn the loss of the noncustodial parent, typically but not always, the father.

Common childhood and adolescent reactions to parental divorce include a continuing desire for the parents to reunite; fears of desertion; feelings of guilt over having been responsible for the divorce; developmental regression; sleep disorders; and physical complaints. While researchers have found that some children recover from the trauma of divorce within one to three years, subsequent long-term studies have documented persistent negative effects that can follow a child into adolescence and beyond, especially with regard to the formation of intimate relationships later in life. The effects of parental divorce have been linked to phenomena as diverse as emotional and behavioral problems, school dropout rates, crime rates, physical and sexual abuse, and physical health. However, mental health professionals continue to debate whether divorce is more damaging for children than the continuation of a troubled marriage.

Infancy

Infants' reactions to divorce come from interference with the satisfaction of their basic needs. The removal of the noncustodial parent or increased work hours for the custodial parent can cause separation anxiety, while the parents' emotional distress tends to be felt by babies, upsetting their own emotional balance. The inability of infants to understand the concept of divorce makes the changes in their situation seem frighteningly unpredictable and confusing. Reactions include irritability, increased crying, fearfulness, separation anxiety, and sleep problems.

Toddlerhood

Toddlers may revert to an earlier development stage in such areas as eating, sleeping, toilet training, motor activity, language, and emotional independence. Other signs of distress include anger, fearfulness, nightmares, fantasies, and withdrawal.

Preschool

In preschool-age children, continued self focus, coupled with a more advanced level of cognitive development, leads to feelings of guilt as these children may become convinced that they are the reason for their parents' divorce. Children at this age are also prone to powerful fantasies, which can include imagined scenarios involving abandonment or punishment. The disruption that follows divorce, particularly in the relationship with the father, also becomes an important factor for children at this age. Developmental regression may take the form of insisting on sleeping in the same room or bed as the parent; refusing to eat all but a few types of food; stuttering or reverting to baby talk; disruptions in toilet training; and developing an excessive emotional dependence on one parent.

School Age

By the early elementary grades, children are better able to handle separation from the noncustodial parent. Their greater awareness of the divorce situation, however, may lead to elaborate and frightening fantasies of abandonment or of being replaced in the affections of the noncustodial parent. Typical reactions at this stage include sadness, depression, anger, and general anxiety. Disruption of basic development in such areas as eating, sleeping, and elimination is possible but less frequent than in younger children. Many children this age suffer a sharp decline in academic performance, which often lasts throughout the entire school year in which the divorce takes place.

Children in the upper elementary grades are capable of better understanding of the divorce. At this age, the simple fears and fantasies of the younger child are replaced by more complex internal conflicts, such as the struggle to preserve one's allegiance to both parents. Older children become adept at erecting defense mechanisms to protect themselves against the pain they feel over a divorce. Such defenses include denial, displacement of feelings, and physical complaints such as fatigue, headaches, and stomachaches. Children in the upper elementary grades are most likely to become intensely angry at their parents for divorcing. Other common emotions at this stage of development include loneliness, grief, anxiety, and a sense of powerlessness.

For teenagers, divorce is difficult because it is yet another source of upheaval in their lives. Teenage behavior is affected not only by recent divorces but also by those that occurred when the child was much younger. One especially painful effect of divorce on adolescents is the negative attitude it can produce toward one or both parents, whom they need as role models but are often blamed for disappointing them.

Teens are also prone to internal conflicts over their parents' divorce. They are torn between love for and anger toward their parents and between conflicting loyalties to both parents. Positive feelings toward their parents' new partners come into conflict with anxiety over the intimacy of these relationships, and the teenager's close affiliation with the custodial parent clashes with his or her need for increased social and emotional independence. Although children at all ages are distressed by parental divorce, during the teen years it can result in potentially dangerous behavior, including drug and alcohol abuse, promiscuous sexual activity, violence, and delinquency.

Children ages 12–15 need consistent support from both parents but may not accept equal time-sharing of their living arrangements. They may blame one or both parents and may become controlling by demanding to stay in one place or to switch residences constantly.

Youths ages 15–18 group may become focused on establishing their independence and on social and school activities, and they may become intolerant of their parents' problems. Although teens still needs parental support, they may also tire of worrying about one or both parents. Being able to listen to teens when they are able to talk about their feelings may be helpful. Although teens may want to see their parents happy, they may have mixed feelings about seeing their parents dating other people. They may feel that condoning parental dating would be disloyal to the other parent. Older teens who need help may have behavior problems, exhibit depression, show poor school performance, run away from home, or get into trouble with the law.

Common Problems

Not all children react the same way when told their parents are divorcing. Some ask questions, some cry or get angry, and some initially do not react at all. Problems to watch for include trouble sleeping, crying, aggression, deep anger and resentment, feelings of betrayal, difficulty concentrating, chronic fatigue, and problems with friends or at school.

Experts agree that it is important for parents who are divorcing to avoid involving their children in their disputes or forcing them to choose sides, and parents are often advised to avoid criticizing their former mates in front of their children. In order for children to heal from the emotional pain of parental divorce, they need an outlet for open expression of their feelings, whether it is a sibling, friend, adult mentor or counselor, or a divorce support group. Extended families can be a significant source of support for children, providing them with stability and with the reassurance that others care about them. Although parental divorce is undeniably difficult for children of all ages, loving, patient, and enlightened parental support can make a crucial difference in helping children cope with the experience both immediately and over the long term.

Parental Concerns

The custodial parent should be aware of the effects of the divorce on the child and above all, should reassure the child that the remaining parent will not abandon them. It is also important to maintain as much normalcy as possible after a divorce by sticking to regular routines, such as meal times, bedtime, rules of behavior, and methods of discipline. Relaxing limits during a time of change can make children feel insecure.

When to Call the Doctor

Medical help may be needed if a child inflicts self-injury. Psychological counseling may also be needed to help the child understand and cope with the divorce. This is especially true if any of the common reactions last for an unusual amount of time, intensify over time, or if the child talks about or threatens suicide.

Resources

Books for Adults

Hannibal, Mary Ellen, and Ina Gyemant. Good Parenting Through Your Divorce: How to Recognize, Encourage, and Respond to Your Child's Feelings and Help Them Get Through Your Divorce. New York: Marlowe & Company, 2002.

Samenow, Stanton. In the Best Interest of the Child: How to Protect Your Child from the Pain of Your Divorce. New York: Crown Publishers, 2002.

Wallerstein, Judith S., and Sandra Blakeslee. What About the Kids? Raising Your Children Before, During, and After Divorce. New York: Hyperion, 2003.

Books for Children and Teens

MacGregor, Cynthia. The Divorce Helpbook for Teens. Atascadero, CA: Impact Publishers, 2004.

Masurel, Claire, and Kady MacDonald Denton. Two Homes. Cambridge, MA: Candlewick Press, 2003.

Reilly, Natalie June, and Brandi J. Pavese. My Stick Family: Helping Children Cope with Divorce. Far Hills, NJ: New Horizon Press Publishers, 2002.

Periodicals

Cohen, George. "Helping Children and Families Deal with Divorce and Separation." Pediatrics (November 2002): 1019–23.

"Helping Your Child Through a Divorce." The Brown University Child and Adolescent Behavior Letter (December 2002): S1–S2.

"Intervention for Children of Divorce Prevents Future Mental Disorders." Mental Health Weekly (October 21, 2002): 3–4.

Martin, Paige D., et al. "Expressed Attitudes of Adolescents Toward Marriage and Family Life." Adolescence (Summer 2003): 359–67.

Shansky, Janet. "Negative Effects of Divorce on Child and Adolescent Psychosocial Adjustment." Journal of Pastoral Counseling (Annual 2002): 73–87.

Winslow, Emily B. "Preventive Interventions for Children of Divorce." Psychiatric Times (February 1, 2004): 45.

Organizations

Kids in the Middle Inc. 121 W. Monroe, St. Louis, MO 63122. Web site: www.kidsinthemiddle.org.

National Family Resiliency Center Inc. 2000 Century Plaza, Suite 121, Columbia, MD 21044. Web site: www.divorceabc.com.

Web Sites

"A Kid's Guide to Divorce." Kids Health, April 2002. Available online at www.kidshealth.org/kid/feeling/home_family/divorce.html (accessed November 24, 2004).

"Promoting Mental Health for Children of Separating Parents." Canadian Paediatric Society, January 2004. Available online at www.cps.ca/english/statements/PP/pp00-01.htm (accessed November 24, 2004).

[Article by: Ken R. Wells]

For more information on divorce, visit Britannica.com.

Despite their belief that the family was the basis of political and ecclesiastical authority, sev- enteenth-century Puritans held that marriage was a civil contract that could, under certain circumstances, be broken. Divorce was permissible on several grounds, including adultery, long absence, and cruelty, but such grants were rare and reflected the gender hierarchy that pervaded all of social life. In principle, both men and women could receive divorces on the ground of adultery, but in keeping with the sexual double standard, men were the chief beneficiaries of this law. In Massachusetts between 1692 and 1786, half of all male petitioners (50 of 101) named adultery as their sole grievance and 70 percent received divorces; no woman petitioned for divorce solely on the ground of adultery until 1774, and only 6 did so in the next twelve years. In the South, only separations were legal, a reality that left colonial women yoked to their more powerful husbands. On the other hand, although only a few hundred colonial men and women actually obtained divorces, thousands simply deserted their spouses, suggesting more marital conflict than the low divorce rate for the period suggests.

But divorce laws and procedures gradually changed in ways that benefited women. In the revolutionary era, wives found courts more receptive to their complaints about adultery, and in the early nineteenth century, state legislatures expanded the grounds of divorce, including most significantly, intemperance and cruelty. The change fueled the expansion of female divorce petitioners over the course of the century: by 1900 about two-thirds of all divorces went to women, and by 1929, 44 percent of divorces granted to women were on the ground of cruelty. Nor was the definition of cruelty static: during the nineteenth century, it came to embrace the idea of "mental cruelty" as a sufficient reason for divorce. Again, women were the chief beneficiaries of the change. But although thousands of women received divorces on the grounds of cruelty or desertion (the most common late-nineteenth-century complaints), they seldom received child support or alimony. Women did, however, gain increasing access to child custody over the course of the nineteenth century as new cultural emphases on the importance of motherhood and childhood predisposed courts to award children of "tender years" to their mothers. For some women, then, divorce brought freedom and independence; for others, merely new obligations, difficulties, and dependencies.

Divorce finally became a major social issue in the late nineteenth and early twentieth centuries because of a huge expansion in the divorce rate. In 1880 only one of every twenty-one marriages ended in divorce; in 1916 that figure was one of every nine. The surging divorce rate prompted a protracted debate over the cultural meaning of divorce. Feminists and liberals could see no reason stringent divorce laws should stand in the way of freedom and happiness, but a diverse group of conservatives saw in the legal dissolution of families a prelude to social disorder and a sign of female selfishness. While the former hoped to widen access to divorce, the latter called for tougher divorce laws and a dose of traditional morality to reduce the flow through the divorce courts.

Although conservatives failed to enact a uniform divorce code, they did manage to abolish omnibus clauses, restrict the rights of remarriage, and impose stricter residency requirements on divorce seekers. Nevertheless, these conservative measures did nothing to stem the tide of women and men seeking to end their marriages. Although there were short-term fluctuations, the divorce rate rose slowly in the 1920s, dropped off in the early years of the depression, and then rose steadily in the late 1930s before soaring during World War II. Destroying conservative efforts to reduce the divorce rate were rising romantic and sexual expectations within marriages, heightened tensions over finances and the use of leisure time, growing female opportunities for economic self-support, increasingly expansive definitions of cruelty, the adoption in some states of "irreconcilable differences" as a ground for divorce, and a marked shift toward consensual divorce.

Explanations and remedies for divorce proliferated. Conservatives reiterated their emphasis on moral breakdown and female selfishness; feminists, the need for women to escape the heavy hand of patriarchy; and progressives, the impact of wider social change on family stability. As early as 1910 and continuing until the 1940s, many family experts rejected these explanations and put forth a psychological alternative. Divorce seekers found themselves described as neurotic, abnormal, and infantile. Among professionals, divorce was widely viewed as stemming from immaturity and psychological instability. Rather than seeking changes that might reduce marital stress or simply accepting the inevitability of divorce, reformers instead emphasized curing the neuroses that lay behind divorce. Not surprisingly, the agent of cure--a patriarchal legal system acting as a therapeutic agent--was ill suited for the task. Family courts, social work investigations, reconciliation sessions, and counseling services often devolved into a form of therapeutic intervention that satisfied neither the interests of the couple nor those of the state.

The divorce rate reached an all-time high in 1946 and then declined before leveling off in the 1950s and early 1960s. But beginning in the mid-1960s, it again began to rise dramatically, fueled by ever-higher marital expectations, a vast expansion of wives moving into the work force, the rebirth of feminism, and the adoption of no-fault divorce (that is, divorce granted without the need to establish wrongdoing by either party) in almost every state. These factors all made marital stability more problematic.

The last factor, although hailed as a progressive step that would end the fraud, collusion, and acrimony that accompanied the adversarial system of divorce, has had disastrous consequences for women and children. Presupposing an equality between husbands and wives that has no basis in reality, no-fault divorce has left women and their dependents in an unenviable position. Statistically, men's standard of living rises sharply in the first years following divorce, whereas women's and children's plummets, a situation brought about by men "cashing out" on home sales and by inadequate alimony awards and child support payments. No-fault's seeming equity does not take into account the fact that women find it difficult to compete in a job market characterized by gender segregation and persistent discrimination; moreover, many have been out of the job market for years and are often poorly equipped to earn their own living. Women with small children are especially handicapped. By contrast, divorcing husbands take with them the assets of education, degrees, professional certifications, their good business name, and preference in a segmented labor market. Freed from direct family responsibilities, divorcing husbands can often concentrate on improving their financial situation.

America's divorce rate signifies less a disillusionment with the institution of marriage--the high remarriage rate among the divorced contradicts such a conclusion--and more the consequences of loading marriage with high expectations. Over the last two centuries, American men and women have come to expect material, psychological, emotional, and sexual satisfaction from their marriages. When these expectations are not met, divorce is a logical recourse in a society dedicated to individual happiness. Divorce, then, is likely to remain a prominent feature of American family life. The task before lawmakers and courts is to accept this fact and to make spousal and child support awards that will ensure some measure of parity in the living standards of divorced men and women.

Bibliography:

Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (1988); Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985).

Author:

Robert L. Griswold

See also Family; Marriage.

Prior to the Protestant Reformation in the mid-sixteenth century, legal divorce, in the sense of complete dissolution of the marriage bond with the right to remarry, was impossible anywhere in Europe because the Catholic Church, which governed marriage formation, considered marriage a sacrament dissoluble only by the death of one of the spouses. Unhappy couples did, however, sometimes divorce informally. While the Reformation made divorce theoretically possible in most Protestant regions, judges' reluctance to grant divorces, coupled with economic barriers, meant that not until the late eighteenth century did more than a small number of couples divorce legally.

Catholic Europe

Throughout the early modern period, canon law offered only two avenues for Catholics unhappy with their marriages: separation or annulment. A separation from bed and board (separatio a mensa et thoro) granted a spouse who could prove the other spouse's adultery or excessive cruelty (or, infrequently, heresy) permission to live separately and separated the spouses' finances, often giving the innocent spouse possession of the wife's dowry. Neither spouse could remarry, however, because the marriage bond remained intact. In contrast, an annulment allowed remarriage because it declared the marriage had never existed. It did so on the basis of one or more legal impediments to the union, primarily if the spouses were too closely related either by blood or by marriage or if one spouse had contracted an earlier and valid marriage, had taken religious vows, was under the age of twelve for girls or fourteen for boys at the time of the marriage, or had married under duress. Despite earlier claims, scholars have come to agree that the use of annulments as quasi-divorces was not widespread. Indeed, convinced that marriage preserved moral order by containing sexual activity, ecclesiastical courts made obtaining separations and annulments quite difficult by imposing strict formal and evidentiary standards.

People from all economic levels brought suits, but separations and annulments were most necessary for the wealthy, for whom marriage, as a union of property and families more than of individuals, needed clear legal resolution. Only annulment would allow subsequent legal marriage with legitimate children and enforceable property and political arrangements—as in the case of Henry VIII (1491–1547), who in 1527 sought an annulment of his eighteen-year marriage to Catherine of Aragon (1485–1536) to marry Anne Boleyn (1507?–1536). People, particularly women, tended to use legal separations to confirm an already existing situation and to improve their legal and financial positions. For example, a wealthy woman who had already left her financially irresponsible, adulterous, and physically abusive husband might seek a legal separation to gain control of her dowry as well as to keep her husband from compelling her return. A poor couple generally only sought a separation or annulment when their marital situation caused a scandal and authorities intervened.

Unhappy spouses with little property, such as wage laborers, had an alternative to court: informal divorce. Authorities condemned these customs but could do little to stop them. Communities informally policed troubled marriages, enforcing conventional standards of marital behavior by sanctioning inordinately abusive or lazy husbands, disobedient wives, and adulterers of both sexes with penalties ranging from gossip to charivari, or ritual shaming. Neighbors acting as go-betweens might try to reconcile spouses, but they also might support spouses, and particularly abused wives, who left their marriages.

Desertion, sometimes by mutual agreement, was the most common means of dissolving a marriage. Poor communication exacerbated the lack of effective official oversight, enabling a spouse willing to start a new life in a distant location to make a new (though bigamous) marriage. The deserted spouse traditionally had to wait seven years for the absent spouse to be presumed dead before remarrying, but in practice many seem to have remarried much sooner, driven by economic needs. It appears that some communities condoned almost immediate remarriage, particularly when there were no children and multiple attempts at reconciliation had failed. Some couples lived separately in the same community, but they generally could not remarry. However, some people in isolated rural areas, such as seventeenth-century northern Spain, conceived of marriage as a contract that could be broken by the consent of the parties, who could then remarry at will.

As much as legal constraints, material circumstances severely limited both formal and informal marriage dissolution throughout the period, even where divorce became legal. Dissolving a marriage meant dissolving an economic unit outside of which it was difficult to survive. Both sexes initiated informal or formal dissolutions, but men more commonly did so, because they had wider employment opportunities. People who lived by working the land probably found it most difficult to separate or divorce. The association of military service and deserting a wife was well recognized, but some husbands deserted by finding jobs in distant cities. Women's well-known difficulty in supporting themselves without a husband, particularly if they had children, probably encouraged many wives to persevere in troubled marriages, sometimes despite life-threatening violence. Deserted wives, along with widows, appeared frequently on poor rolls.

Religious Reform

Rejecting church control of marriage, and with it the sacramentality and indissolubility of marriage, the Reformation legalized divorce with remarriage in most of Protestant Europe (with the major exception of England) by the mid-sixteenth century. For the next two centuries, however, divorce remained largely theoretical and unobtainable for most people.

Protestant joint lay-ecclesiastical courts, perhaps even more than their Catholic predecessors, sought to preserve marriage to promote its primary purposes of saving people from the sin of wantonness and social disorder. They made legal separation difficult and granted divorces only in cases of adultery or desertion, which struck at the heart of marriage in their eyes, never on the grounds of incompatibility and only rarely for extreme cruelty. Judges granted few divorces and frequently forced couples to reconcile. Scottish courts between 1658 and 1707, for example, granted a total of thirty-five divorces, fewer than one per year.

Divorce was punitive: usually only the innocent party could remarry and received custody of any children and control of most financial resources. A divorce suit often led to criminal prosecution for an adulterer, who could be punished with imprisonment or even death, as in Calvinist Geneva. In part because wives were subject to a stricter definition of adultery than husbands, men requested and received more divorces than women.

The Council of Trent's reconfirmation of marital indissolubility in 1563 meant that in areas that remained Catholic, legal divorce continued to be impossible. Despite this basic difference, sixteenth- and seventeenth-century Protestant and Catholic authorities approached the problems of marital breakdown and informal dissolution with similar efforts at control and with similarly limited success. Linking marital harmony to social order, Catholic priests and Protestant pastors chastised spouses living apart privately and publicly at church, while magistrates of both confessions levied fines and even imprisoned those who refused to cohabit. Parish priests investigated the marital status of outsiders seeking to marry their parishioners, making bigamous remarriage after desertion more difficult. In Spain the Inquisition focused on rooting out bigamy, meting out one hundred lashes and three to five years in the galleys to men and banishment to women found guilty. A few Protestant and Catholic regimes for a time even created de facto divorce for adultery when they pursued and executed adulterers. Civic and religious institutions also developed to help unhappily married women, known in Italy as the malmaritate, offering refuge from abusive husbands and even assistance in seeking legal separations.

The effects of these efforts on actual behavior remain unclear. People still dissolved their marriages as before and even devised new ways. Some spouses in seventeenth-century Switzerland used notaries and written acts to divide their property and separate, while some eighteenth-century English husbands engaged in the infamous "wife selling" by "auctioning off" their wives on market day to prearranged "buyers."

Secularization

The eighteenth century, especially the latter half, saw the secularization of control of marriage in both Protestant and Catholic Europe, as civil powers eroded ecclesiastical control of marriage. In Catholic lands change was primarily institutional, leaving the content of the law largely unchanged, as in France where the monarchy claimed jurisdiction over such matters as marriages of minor children, bigamy, and separation. These institutional changes did, however, lay the groundwork for the French Revolution's legalization of divorce in 1792.

In Protestant regions encroachment of secular institutions eroded the influence of churchmen and with it their conception of marriage as a union based on duty, opening the way for a softer official attitude toward divorce. Sweden, for example, placed divorce under secular jurisdiction in 1734. Secular judges, influenced by Enlightenment ideas that love, respect, and companionship were central to marriage, became more willing to grant divorces and separations when these qualities were lacking, namely in cases of cruelty or even incompatibility. These broader grounds made legal divorce a possibility for many more people, particularly for women, who began to seek divorces in much larger numbers. At the same time proto-industrialization and urbanization loosened household economic ties, making it possible for more spouses, and especially wives, to dissolve their marriages.

Bibliography

Gottlieb, Beatrice. The Family in the Western World from the Black Death to the Industrial Age. New York and Oxford, 1993.

Kamen, Henry. The Phoenix and the Flame: Catalonia and the Counter Reformation. New Haven and London, 1993. Especially chapter 6.

Kingdon, Robert M. Adultery and Divorce in Calvin's Geneva. Cambridge, Mass., 1995.

Phillips, Roderick. Putting Asunder: A History of Divorce in Western Society. Cambridge, U.K., 1988.

Stone, Lawrence. Road to Divorce: England 1530–1987. Oxford, 1990.

Watt, Jeffrey R. The Making of Modern Marriage: Matrimonial Control and the Rise of Sentiment in Neuchâtel, 1550–1800. Ithaca, N.Y., and London, 1992.

—EMLYN EISENACH

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 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 a divorce should be granted by the court. If 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 related 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 grew, governments came under religious control and the Catholic Church, the most powerful of the Christian sects, strictly forbade divorce. The only exception to this ban was if one of the parties had not been converted to Christianity before the marriage.

During the 1500s the Protestant Reformation movement in Europe rejected religious control over marriage and helped move the matter of divorce from the church to the state. Divorces were granted by European courts 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 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 on a showing of fault on the part of a spouse. This meant that if a divorce was contested, the divorcing spouse was 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, the court was 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 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 may 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 National Conference of 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, attorneys may 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 child visitation rights, spousal maintenance, and property distribution.

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 preschool 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 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 plans, and retirement benefits. The statutes that govern property division vary by state, but they can generally 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 in which to divide 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 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 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 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 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 the property 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 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 each party brought into the marriage. These types of property are considered separate and not part of the community. Upon divorce each party gets his or her own separate property, as well as one-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 a variation 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 both men and women are eligible for spousal maintenance. Factors 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 planning 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 ante- nuptial 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 she or he maintains a permanent home. States are obligated to acknowledge a divorce obtained in another state. This rule is 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 attached to 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 titled Responding to the Needs of the Self-Represented Divorce Litigant. In the report 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 fifty-one different sets of conditions — one for each state and for the District of Columbia. Each state holds dear its power to regulate domestic relations, and peculiar divorce laws abound. Divorce law in most states has nonetheless 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 fault in setting future obligations between the parties. To determine the exact nature of the rights and duties related to a divorce, one must consult the relevant statutes for the state in which the divorce is filed.

See: annulment; family law.

Tutor's tip: The "divorcee" (a divorced woman) had a very different experience after the "divorce" (the end of a marriage) than the "divorce" (a divorced man).

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Quotes:

"It is he who has broken the bond of marriage -- not I. I only break its bondage." - Oscar Wilde

"A New York divorce is in itself a diploma of virtue." - Edith Wharton

"Divorce is probably of nearly the same date as marriage. I believe, however, that marriage is some weeks the more ancient." - Voltaire

"If you think you have trouble supporting a wife, try not supporting her." - Source Unknown

"You can't stay married in a situation where you are afraid to go to sleep in case your wife might cut your throat." - Mike Tyson

"It takes two to destroy a marriage." - Margaret Trudeau

See more famous quotes about Divorce