Divorce

Divorce 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 and Philippines (where all civil marriages are for life, because civil divorce is banned). 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.

United States Divorce

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. 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 to date.

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. 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.

Statistics

In the United States, 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).

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.

Surprisingly, 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.

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]).

Causes

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.

Financial Issues

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. Furthermore, the 50/50 split holds even if the richer spouse commits adultery or iniates the divorce even though arguably the richer spouse should equally get less in these cases if they are grounds to reduce the percentage for poorer spouse.

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.

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.