Divorce/Separation/Annulment
| Author | Jeffrey Wilson |
| Pages | 761-772 |
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In primitive civilizations marriage and marriage dissolution were considered private matters which did not require involvement of any authority above the individuals in the relationship. The Romans first placed marriage and divorce under state regulation during the reign of Augustus. When Christianity spread about 300 A.D., governments came under religious control. The Catholic Church did not permit divorce unless one of the parties had not been converted to Christianity prior to marriage, which then made the marriage null and void.
During the early 1500s, the Protestant Reformation began a slow movement in Europe to separate the laws governing marriage from the precinct of the Roman Catholic Church. Henry VIII wanted the Catholic Church to grant him a divorce from Catherine of Aragon because all the male offspring she bore died shortly after birth, and Henry believed he could secure a male heir by marrying another woman. When Pope Clement VII refused, Henry took control of Church properties in England and made himself head of the Anglican Church. This separation from the Vatican made divorce possible in England by an act of Parliament. Still, divorce remained rare; when it occurred it was a costly legislative process and could only be initiated by husbands. The resistance toward and rarity of divorce continued well into the nineteenth century.
Divorce law in the American colonies was somewhat influenced by the British, but more so by the colonists themselves. England did not want its American colonies to enact any type of law, which conflicted with English law. Thus, a colonial divorce was not considered final until the English monarch had approved it. Nevertheless, several colonies adopted their own laws permitting divorce, often under odd circumstances. Under one late seventeenth century Pennsylvania law if a married man committed sodomy or bestiality, his punishment was castration, after which the wife was permitted to divorce him. In Connecticut divorce was allowed on the grounds of adultery, desertion, and the husband's failure in his conjugal duties. In Massachusetts, divorce was permitted if one of the parties committed adultery.
The U.S. Constitution left divorce regulation to the states. State legislatures passed laws that granted
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divorce based on a showing of fault. 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 sufficiently proven the grounds alleged, the petition for divorce could be denied and the case dismissed.
The most common traditional grounds for divorce were cruelty, desertion, and adultery. Other grounds included nonsupport or neglect, alcoholism or other drug addiction, insanity, criminal conviction, and voluntary separation. In 1933, New Mexico became the first state to allow divorce on the ground of incompatibility. In 1969 California completely revised its divorce laws, providing that a filing party merely show irreconcilable differences resulting in an irremediable breakdown of the marriage. California's was the first comprehensive "no-fault" divorce law, and it inspired nationwide divorce law reform. 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." Many states adopted the act. By 1980, nearly every state legislature had enacted laws allowing no-fault divorces or divorces 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 those states a divorce petitioner remains free to file for divorce under traditional grounds.
By 1987, all fifty states had adopted no-fault divorce laws, exclusively or as an option to traditional fault-grounded divorce. Despite the obvious advantages, no-fault divorce laws sometimes leave parties with no real remedy for harmful acts of a spouse. Most states have laws that prevent one spouse from suing the other. Fault has survived in some aspects of divorce proceedings. Under current theories, 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.
Legal separation is similar to a divorce in that papers are filed, there is often a custody or property settlement ordered by the court, but the parties remain married. There may be benefits to this type of arrangement, but they are few. In most states, it is difficult to convert a legal separation into a divorce, and it requires beginning the process over with the filing of a divorce petition.
Annulment is a legal process in which a court essentially determines the parties were never legally married to begin with and the marriage is null and void. Annulments are not often granted, but grounds for doing so include if one party is incapable of consent, due to mental state or intoxication, fraud about some aspect of the marriage, or a failure to consummate the marriage. Annulments are regulated by state law.
Property distribution includes issues of 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 assets in a fair and equitable manner. Some equitable distribution states look to the conduct of the parties and permit findings of marital fault to affect property distribution. In others only fault relating to economic welfare is relevant in property distribution. Yet other states entirely exclude marital misconduct from consideration in disposition property. Equitable distribution rules give the court considerable discretion in which to divide property between the parties. The courts consider the joint assets held by the parties and 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, then the court will recognize that it belongs separately to the individual spouse and will not divide it along with the marital assets.
Equitable distribution states consider contributions (often including homemaker contributions) by each spouse made to the marriage. If one party made
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a greater contribution, the court may grant that person more 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. Property obtained by gift or through inheritance is considered separate, unless it is comingled with community property. Upon divorce each party gets all separate property, as well as one-half of the community property.
In 1982 Congress passed a law, the Uniformed Services Former Parties' Protection Act, that permits state courts to treat military retired pay as property. In community property states and many other states, a formula is used when the member has already retired. But for an active duty member, there may be no state law that specifies how the award is to be calculated.
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. 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 parties. Maintenance is most often used to provide support to a spouse who was financially dependent on the other during the marriage. Many states allow courts to consider marital fault in determining whether, and how much, maintenance should be granted.
Between the time a dissolution action is filed and the time a judgment of dissolution becomes effective, the court may use temporary orders to resolve any issue in the case, including temporary support and temporary allocation of assets. Temporary orders address the immediate concerns of the parties, but also frequently form the basis for the permanent orders later in the final decree.
Jurisdiction over a divorce case is usually determined by residency. That is, a divorcing spouse is required to bring the divorce...
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