Divorce is the legal ending of a marriage. The laws of most nations permit divorce only under certain circumstances. Divorce is restricted chiefly because it breaks up a family, the basic unit of society. Some countries, including the Philippines, prohibit divorce.
Most couples who seek a divorce do so because they cannot solve certain problems in their marriage. Such problems may include differences in goals, financial difficulties, or a poor sexual relationship.
A person seeking a divorce generally must appear in court to explain why he or she wants to end the marriage. A judge then decides whether to grant a divorce. In general, a divorced person may remarry.
Divorce differs from annulment, in which a court declares that a marriage has been invalid from its start. A person whose marriage has been annulled may remarry. Divorce also differs from legal separation, in which a court authorizes spouses (two people in a marriage) to live apart. Spouses who are legally separated may not remarry.
Divorce is a sizable problem in the United States and many other countries. Each year, more than a million couples divorce in the United States. In many of these divorces, couples have children under 18 years old. Only about two-thirds of the children in the United States grow up with both biological parents. Divorce affects many young children deeply. But many experts believe that living with one parent is less harmful to a child than living with both parents in an unhappy environment.
Most divorced people remarry, and many such marriages are successful. However, second marriages present special problems of adjustment, especially for couples who have children from former marriages. Families that include children from one or more previous marriages are called stepfamilies or blended families. Such families become more common when the divorce rate rises.
The first written divorce regulations were incorporated in the ancient Babylonian Code of Hammurabi. Many early societies permitted only a man to get a divorce. The early Christians taught that marriage was permanent until death, and they abolished divorce in the areas they governed. They also established special church courts to deal with marriage matters. Beginning in the A.D. 1500’s, Protestant reformers successfully worked to place matters of marriage and divorce under government jurisdiction.
Divorce rarely occurred in the American Colonies. Some colonies made no provision for divorce at all. But by the mid-1800’s, almost every U.S. state had a divorce law. The divorce rate increased significantly in later years, particularly during the late 1900’s.
Grounds for divorce
Modern divorce laws have developed largely from religious rules. For example, in Australia, Canada, New Zealand, the United Kingdom, and the United States, divorce laws have been based on Christian tradition. Until the mid-1900’s, divorce in these countries was available only to an “innocent” party. Divorces would be granted only if the other spouse committed a matrimonial offense, such as adultery, cruelty, or desertion.
In the 1960’s, many people called for a more liberal approach to divorce. They believed that the fault did not necessarily lie with just one spouse, and that it was pointless to maintain an unsuccessful marriage.
In the United States.
Each U.S. state has its own divorce laws. But all the states recognize a divorce granted by the state in which one or both of the spouses are legal residents. State laws set forth the grounds for divorce—that is, the reasons for which a divorce may be granted. Depending on the kind of grounds, a divorce can be classified as a fault divorce or a no-fault divorce.
Fault divorce.
Courts traditionally have granted divorces chiefly on fault grounds. These grounds vary, but the most common ones are adultery, alcoholism, desertion, drug addiction, imprisonment for felony, and mental or physical cruelty.
A person seeking a divorce on a fault ground must prove that his or her spouse committed the fault. For example, a woman seeking a divorce on the ground of desertion must prove that her spouse deserted her. The spouse may contest (argue against) the divorce action. If the woman’s proof is accepted, the judge grants her a divorce. But if the spouse can prove the partner consented to or encouraged this action, the judge may refuse to grant a divorce. The judge also may rule against the woman if the spouse can prove that she committed a legal fault. Many fault divorces are uncontested.
No-fault divorce.
A person seeking a divorce on a no-fault ground does not try to prove that the spouse committed a wrong. The person simply testifies that their marriage has failed. In many cases, the judge grants a divorce even if the person’s spouse objects.
In 1969, California became the first state to enact a no-fault divorce law. The California law provides only two grounds for divorce. These grounds are (1) irreconcilable differences—that is, disagreements that cannot be settled and have led to the breakdown of the marriage; or (2) the incurable insanity of one spouse. Generally, a person may not tell the judge about any misconduct of the spouse.
Some states have replaced all traditional grounds for divorce with the single no-fault ground of marriage breakdown. Other states have added this to their traditional grounds. Several states allow a couple to obtain a divorce on the ground that they have been separated for a certain period. Some states grant divorce on the ground of incompatibility (being unable to get along together).
Arguments for no-fault divorce.
People who favor no-fault divorce argue that many marriages fail for reasons other than one spouse’s misconduct. Therefore, they argue, a divorce should be granted for reasons other than a fault. In addition, these people believe that relations between spouses remain friendlier in no-fault cases than in fault cases.
Supporters of no-fault laws also point out that traditional divorce laws lead many couples to lie in court. For example, a couple may want a divorce because they cannot get along. But they live in a state that grants divorces only on a few fault grounds. To obtain a divorce, the couple might lie to the judge that one spouse has been physically cruel to the other.
A related argument for no-fault laws is that traditional divorce laws lead some people to seek a divorce in another state. For example, a person living in a traditional divorce state may go to a no-fault divorce state that has a short residency requirement. After living in this state for the required period, the person might falsely claim to be a permanent resident. He or she would then obtain a divorce and return to his or her own state. If the spouse disputes the validity of the divorce, a court may decide that residence was not truly established in the state that granted the divorce. As more states liberalize their laws, fewer people seek divorce in such a state as Nevada, which has a residency requirement of just six weeks.
Arguments against no-fault divorce.
Some people oppose no-fault divorces because they think that such divorces can be obtained too easily. They fear that judges may grant a divorce to anyone who says the marriage has broken down, whether it actually has or not. Others believe restrictions should be added to no-fault laws to prevent premature or unnecessary divorces. In some states, courts direct couples planning divorce to consult a marriage counselor. Some states require a waiting period to give a couple time to reconsider their decision.
The divorce process may be simpler under no-fault laws than under fault laws. Therefore, in some no-fault states, some couples can obtain a divorce without hiring lawyers. Some judges oppose this practice, called do-it-yourself divorce, because they believe a lawyer is needed to protect the rights of spouses and children.
In other countries.
In Australia, Canada, New Zealand, and the United Kingdom, spouses may obtain a divorce if they show proof of an irreversible breakdown of the marriage. In India, most people follow Hinduism, which traditionally does not allow divorce. But a civil law of 1955 allows for divorce among Hindus. Other religious groups in India, such as Muslims, Parsis, and Sikhs, have other divorce laws. Under some interpretations of Islamic law, for example, a man may divorce his wife by saying the word talaq (divorce) three times.
Divorce provisions
A couple planning a divorce must make arrangements for child custody and support, division of property, and, in some cases, financial support of a spouse. They may reach agreement on these arrangements through their lawyers. If the judge considers the agreement fair, the judge approves it. If the spouses cannot agree, the judge decides on the arrangements.
Financial arrangements.
In the past, the judge ordered many divorced men to pay considerable alimony—that is, money to maintain their ex-wives. They also had to give up some of their property and bear most of the responsibility for supporting their children. There were two chief reasons for this situation. First, many divorced women had no job outside the home and needed money to support themselves and their children. Second, traditional fault laws provided that the “guilty” spouse could not receive alimony. In many cases, the husband was the legally guilty spouse because his wife sued for the divorce, even though both might have wanted it.
Today, courts base their decisions about financial arrangements primarily on the financial condition of each spouse. If both spouses can earn enough income to support themselves, the court may order that no alimony, or maintenance, be paid. In addition, the couple may share responsibility for child support.
The court may also divide a couple’s property on the basis of financial circumstances. Under the community property laws of a few U.S. states, property acquired during a marriage belongs equally to both spouses. This property is divided equally in most cases.
Child custody arrangements.
In the early and middle 1900’s, judges granted custody of the children to the woman almost automatically in the majority of divorce cases. They believed that children should not be separated from the mother. But today, many judges realize that some children might be better off living with a father. The judge also determines each parent’s rights to visit the children. The judge may ask the children with which parent they would prefer to live. The judge usually gives custody of all the children of a marriage to one parent.
Some divorced parents return to court several times because one or both of them want to challenge the child custody decision. If the court changes its decision, the children may have to leave the home of one parent and move in with the other. Such a move can harm children emotionally. As a result, some courts have become reluctant to move children unless they are in danger.
The divorce rate
The divorce rate grew from the late 1960’s through the early 1980’s. Experts have suggested many reasons for this increase. (1) Divorce is more socially acceptable than it once was. (2) Many people expect more of marriage than earlier generations did, and so they may be more easily disappointed. (3) More high-paying jobs are open to women. Thus, women are less economically dependent on their spouses than in the past. (4) Changes in divorce laws have made divorce easier to obtain. On the other hand, the divorce rate has declined since the late 1980’s.
The divorce rate is higher in the United States than in almost any other country. In general, cities have a higher divorce rate than rural areas. The rate also varies among different states and regions, partly because divorce laws and court practices differ. But the rates probably also differ because of variances in the cultural, economic, racial, and religious composition of the population. In general, people with nonprofessional jobs and those with low incomes have a higher divorce rate than people with professional jobs and those with high incomes.
Of the three largest religious groups in the United States—Protestants, Roman Catholics, and Jews—only Roman Catholicism does not recognize divorce. The Catholic Church holds that valid marriages cannot be dissolved. It allows its members to get a civil divorce to solve financial and child custody problems. But it does not believe such a divorce gives the right to remarry. If the church has annulled a marriage, the people involved may remarry (see Annulment). Judaism and most Protestant groups permit divorce.
