Divorce

What is Divorce?

Divorce or dissolution of marriage is the ending of a marriage, 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 developed countries, divorce rates have increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, Japan, Korea and members of the European Union (in Malta divorce is illegal, Ireland only allowed divorce since 1997 via a referendum, (the Fifteenth Amendment to the constitution)). In U.S, Canada, the United Kingdom and other some other developed Commonwealth countries, this boom in divorce developed in the last half of the twentieth century. 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. The subject of divorce as a social phenomenon is an important research topic in sociology.

Some researchers argue that divorce rates do not always reflect actual interactions among people; that is, some countries may show a low divorce rate because, in such countries, people rarely get married in the first place.

The term between divorce and remarriage varies depending on the country and the sex of the divorcee. In some countries, women need to wait longer than men before remarrying to avoid confusion about paternity. Children born after divorce may or may not be recognized as children of their father depending on the period between divorce and birth, although recognition of maternity is usually automatic. In most common law jurisdictions there is a presumption that the child born during the marriage is the husband's child, however this presumption can be overcome by identifying the putative father and bringing a paternity or affiliation proceeding. If the child was conceived before the divorce but born afterward this may involve litigation. If a man accepts the child as his own he may be declared the father and may in many jurisdictions incur obligations towards the child.

A man who has been divorced is a divorcé; a divorced woman is a divorcée (from French).

A divorce is generally accomplished through 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.

Causes of Legal Divorce.

The main causes of legal divorce in 2004 (2003) were:

* Extra-marital affairs (adultery) - 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%)

Facts about Legal Divorce

Regarding extra-marital affairs, men engaged in them in 75% (55%) of cases; women in 25% (45%).

In cases of family strain, it was women's families in 78% of cases who were the cause, compared to 22% of men's.

Emotional/physical abuse was more evenly split with women affected in 60% and men in 40% of cases.

In 70% of workaholism-related legal divorces it was men who were the cause, and 30% women.

The 2004 survey found that in 93% of cases divorces were petitioned by women, very few of which were contested.

53% of divorces tended to occur in marriages which had lasted between 10 and 15 years, with 40% ending between 5 and 10 years. The first 5 years tend to be divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.

Regarding legal divorce settlements, 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 legal settlements. (down from 24% the previous year).

The 2004 report concluded that in order for more equitable splits to occur in future it will be down to the success of campaigns like that of Fathers 4 Justice to ensure that a greater proportion of divorcing couples are granted shared residence orders for their children.

Financial and emotional implications of divorce.

Women are often the financial victims of divorce due to the lack of equal pay for equal work in many countries and the fact that many women give up employment after marriage to rear children. They are often left with the burden of looking after the children after the divorce while having to find work in low-paid jobs. Child support collection is a major problem as many fathers do not accept that they have an obligation towards their children. Many national and local governments provide some kind of welfare system for divorced mothers and their children. See single mother for details.

Men are generally the financial victims of divorce due to court-ordered alimony and child support which women often are not required to pay, and the fact that many men are entirely denied custody of their own children. Some men are left with the burden of never seeing their children, which is a major problem as many mothers may relocate the children, not accepting that they have an obligation to provide a stable and supportive family with both parents involved. Although women are less likely to pay child-support, they are more likely to neglect support payments when they are required. Unfortunately, the aspect of family stability is one argument stated against same-sex marriage, since court orders against men and child neglect by women are no longer defensible one-way legal benefits. Recognition of the problems faced by fathers and other relatives is given by self-help groups such as Families Need Fathers.

The fact that women often receive primary custody of their children means that some men are are unable to see their children as frequently as they would like, and this is particularly difficult if one ex-spouse or the other moves. Currently in the US, federal law makes non-payment of child support an automatic felony, whereas a mother's refusal to let the father see his children in accordance with court decisions is not an act criminalized by the federal government.

In the USA, a spouse who resides in a community property state and lacks a prenuptial agreement is 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. Thus, the spouse who would be the least well off on their own receives unearned money, property, and/or other assets upon the divorce settlement. Theoretically, a spouse with zero assets would get 50 percent of the other spouse's assets (possibly not counting pre-marriage assets and inheritance), while two spouses equally wealthy would both keep their share. This is true even if the poorer spouse has committed adultery or initiates the divorce themself. Judges have no power to rectify the situation, and must divide the property evenly no matter how unfair the result may seem. This can generally be avoided if both parties enter into a prenuptial agreement before marriage, though courts sometimes overturn these agreements. While men have traditionally had more assets than women and were negatively affected by community property laws, nowadays more and more women are the wealthier spouse, and are affected as well. Most states in the USA are not community property states. However, some large and populous ones such as California, along with a few smaller ones, are community property states.

In some jurisdictions, only a small minority of divorces involve families with children. For example, in Scotland in 1997, there were 2461 divorces involving children but 9761 of couples with no children under 16.

Legal aspects of divorce.

Muslim societies

No-fault divorce is allowed in Islam, though Islam discourages divorce in any case. No-fault divorce can be obtained by either partner.

If the man seeks divorce he has to pay a dowry and cover the expenses of his ex-wife for a period called 'iddah' (four months 10 days) following divorce, and in the case of the woman feeding his child he has to pay the expenses of his ex-wife for the period she feeds child until the child is two years old (in addition to expenses for child).

If it is the wife who seeks divorce, she must go to a court. The court will first try to make a settlement. If a settlement can't be reached, the court can grant a divorce. If a woman who seeks divorce on the (proven) grounds of ill treatment, inability to sustain her financially or sexual impotence on the part of the husband, the husband has to pay a dowry; otherwise, she gets nothing.

United States

Divorce in the United States is a matter of state law, not federal law. The county court’s family division judge on petitions for dissolution of marriages. [3] National Association of Women Lawyers convinced the American Bar Association to create the Family Law section in the courts, then introduced no-fault divorce law in 1960 (cf. Uniform Divorce Bill).[4] Although some states have not formed gender bias task forces, many courts are working toward the ideal of total equality and fairness says a State Task Force Reports by the National Center for State Courts.

Each state's legislature has enacted divorce laws that set forth the requirements for obtaining a divorce. These requirements vary from state to state. Some states maintain forms of fault-based divorce. Some states have covenant marriage which makes the divorce more difficult to obtain than in the typical no-fault divorce action.

Issues that separating spouses must decide upon are custody, visitation schedule, property division, spousal support and child support.

Concerns that may arise are fathers' rights, order of protection, domestic violence, allegations of domestic violence, parenting plan, and alimony that family law governs as a civil law matter.

What is a Legal Annulment?

Annulment is a legal procedure for declaring a marriage null and void. Annulment differs from divorce where the court ends an otherwise legal marriage on a specific date.

Grounds for legal annulment

Grounds for legal annulment vary in different legal jurisdictions, but are typically limited to fraud, bigamy, and mental incompetence. Grounds for legal annulment often include:

1. Either spouse was already married to someone else at the time of the marriage;

2. Either spouse was too young to be married, or too young without required court or parental consent;

3. Either spouse was under the influence of drugs or alcohol at the time of the marriage;

4. Either spouse was mentally incompetent at the time of the marriage;

5. If the consent to the marriage was based on fraud or force;

6. Either spouse was physically incapable to be married (typically, inability to have sexual intercourse which persists) at the time of the marriage;

7. The marriage is prohibited by law due to the relationship between the parties.

What is community property.

Community property is a marital property regime that originated in civil law jurisdictions, and is now also found in some common law jurisdictions. In a community property jurisdiction, all property acquired during the marriage (except for gifts or inheritances) is owned jointly by both spouses and is divided upon divorce, annulment or death. Joint ownership is automatically presumed by law in the absence of specific evidence that would point to a contrary conclusion for a particular piece of property. The community property system is usually justified by the idea that such joint ownership recognizes the theoretically equal contributions of both spouses to the creation and operation of the family unit.

Division of community property may take place by item, by splitting all items or by value. In some jurisdictions, a 50/50 division of community property is mandated by law; in others a divorce court may decree an unequal division of community property. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property. See division of property.

United States

In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In addition, Puerto Rico is a community property jurisdiction. Married couples in Alaska can also adopt community property rules, at least for the purposes of that state's law, by signing an agreement to that effect.

Community property has certain federal tax implications, which the IRS discusses in its Publication 555.

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