Divorce

• Author: Jeffrey Lehman, Shirelle Phelps

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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 that they own, support responsibilities of either or both of them, and provisions for any children.

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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 the court should grant a divorce. When 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 relating 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 spread, governments came under religious control, and the Roman Catholic Church strictly forbade divorce. The only exception to this ban was if one of the parties had not converted to Christianity before the marriage.

During the 1500s, the Protestant Reformation movement in Europe rejected religious control over marriage and helped to move the matter of divorce from the church to the state. European courts granted divorces 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 Roman 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 upon a showing of fault on the part of a spouse. If a divorce were contested, the divorcing spouse would be 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, it would be 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

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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 other 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 might 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...