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.

Separation Agreements

A separation agreement is used to settle numerous issues that arise in a divorce case, such as alimony, division of property, child support and custody. Courts encourage these types of agreements because they are a means to compromise marital disputes and avoid the expense, delay and stress of litigation.

Since a separation agreement is a contract, it too is governed by the principles of the law of contracts. Specifically, the agreement must be supported by consideration to the extent that it is executory. In a marital relationship, recognized consideration has taken various forms, such as:

(1) mutual promises (see, e.g., Chilwell v. Chilwell, 105 P.2d 122 (1940));

(2) a release by one spouse of property rights of the other spouse (see, e.g., Kirkland v. Kirkland, 181 So. 96 (1939)) and

(3) a spouse’s acceptance of the agreement in satisfaction of his claims for alimony or support (see, e.g., Bennett v. Bennett, 25 P.2d 426 (1933)).

Under the auspices of contract law, a separation agreement can also be challenged based on fraud, duress, or incapacity. In Johnston v. Johnston, 297 Md. 48, 465 A.2d 436 (1983), the court dealt with the issue of whether a separation agreement approved and incorporated but not merged into the divorce decree may be collaterally attacked. The court held that the separation agreement may not be collaterally attacked where its validity is conclusively established by the decree, which operated as res judicata.

Example: Joe and Nita are married. Nita, on highly sedative painkillers, signs the separation agreement, not knowing what she is signing. Two months later, however, she is miraculously cured. At that time, she sees the separation agreement but does not question it. As such, she cannot later collaterally attack the agreement because it was ratified by her action (or in this case, inaction).

Two common defenses to separation agreements are severability and estoppel. With severability, if a particular provision in the agreement is found to be fraudulent, the question arises whether the whole agreement should be invalidated. The answer depends on the intent of parties. There is often severability language in the contract, like one would ordinarily find in a typical contract.

Example: During the time Ted and his soon-to-be ex-wife, Nina, were preparing their separation agreement, he neglected to disclose all his assets, thereby underreporting the true value of his net worth. The other aspects of the agreement (i.e., issues of child support and custody) were not in dispute. A spouse who lies about his or her net worth can open the agreement for re-litigation by the other spouse. The court would have to decide whether to honor the uncontested parts of the agreement or throw out the entire arrangement.

If there is a delay on the part of one spouse with knowledge of any misrepresentation in challenging that section of the agreement, the party is estopped or prohibited from challenging the agreement. For example, if there were hidden assets, a party can re-litigate the property distribution only. Another remedy available to an injured party is she can collaterally attack the agreement, asserting that the agreement was not fair and reasonable when entered into, or the agreement was unconscionable from its inception.

Example: The wife claimed the separation agreement was inequitable and unconscionable because the parties were represented by the same attorney. The Court of Appeals held that the fact that the parties were represented by one attorney was insufficient grounds, by itself, to establish overreaching and unfairness requiring rescission of the agreement. See, e.g., Levine v. Levine, 56 N.Y.2d 42, 451 N.Y.S.2d 26, 436 N.E.2d 476 (1982).

Once all the obligations contained in the Separation Agreement are completed, a conversion divorce can occur, leading to a final divorce decree. It is common practice to incorporate separation agreements into divorce decrees, either by reference or by setting forth their terms expressly. The latter, when given mandatory language, elevates the separation agreements to the status and enforceability of judgments.