Nature of Divorce

Terms:

Divorce:
The legal separation of man and wife, accomplished by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects as it concerns the cohabitation of the parties.

Divisible Divorce:
Decree of divorce may be divided as between provisions for support and alimony and provisions dissolving the marriage. Doctrine applied in cases under Full Faith and Credit Clause in connection with effect of foreign divorce on support provisions.

Ex Parte Divorce:
Divorce proceeding in which only one spouse participates or one in which the other spouse does not appear. The validity of such divorce depends upon the nature of the notice given to the absent spouse.

Migratory Divorce:
Term used to describe a divorce secured by a spouse or spouses who leave(s) his/their domicile and move(s) to, or reside(s) temporarily in, another state or country for purpose of securing the divorce.

Divorce a mensa et thoro:
A divorce from table and bed, or from bed and board. A partial or qualified divorce, by which the parties are separated and forbidden to live or cohabit together, without affecting the marriage itself.

Divorce a vinculo matrimonii:
A divorce from the bond of marriage. A total, absolute divorce of husband and wife, dissolving the marriage tie, and releasing the parties wholly from their matrimonial obligations.

Historical Overview

In an earlier chapter we discussed how to dissolve a marriage via annulment, which often happens at the beginning of the union as a result of some defect at its inception. On the other hand, if the relationship lasts for a while, to dissolve it requires a more formal proceeding—divorce. A divorce dissolves a valid marriage, usually as of the date of the divorce decree.

American divorce as we know it today evolved from some aspects of its British counterpart. The main differences, however, were the lack of secular courts present in England and a strong Protestant tradition, which made divorce in the United States historically easier to obtain than in England. The Protestant influence in New England categorized divorce as a civil matter and statutes were created which authorized divorce for a limited number of offenses, such as adultery, desertion and cruelty. Under the common law, a divorce was granted under these statutes, sometimes by the courts and sometimes by the legislatures. Conversely, divorces were rarer in other areas of the country.

Since divorce law is state specific, the grounds for divorce vary greatly from state to state and often include provisions more relevant to annulment than to divorce, such as those authorizing dissolution of the marriage for bigamy or for fraud. The grounds for divorce also borrow concepts from tort law and include defenses of connivance, condonation, collusion and recrimination. These defenses were developed by the English courts in actions for judicial separation and applied in the United States, either by statute or judicial decision, to suits for absolute divorce.

In the nineteenth century divorce was firmly established as a judicial and not a legislative function. Other characteristic features of current divorce were developed between 1800 and 1900. Alimony, the division of property and orders for support and child custody were adopted. In addition, residency requirements were imposed. As a result, short duration residency requirements encouraged migratory divorce, colloquially known as the “quickie” divorce. Constitutional and conflicts law challenged the validity of these types of divorces. Furthermore, judicial separation and restrictions on the remarriage of divorced persons, both of which created a legal limbo for persons neither married nor unmarried, were widely provided for by statute.

The divorce rate peaked at 5.4 divorces per 1,000 of the population in 1979. According to the National Vital Statistics Report for the 12 months ending October 2003, the rate was 3.8 divorces per 1,000 of the population. Despite this per capita decrease, the divorce rate still hovers near an average of 50%. For certain age groups the rate of divorce is much higher.

An intermediate step to divorce is a legal separation, which is a partial suspension of the marriage relationship. The accompanying separation agreement outlines the rights and obligations of both parties.

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