Divorce in United States
Divorce Definition
The dissolution or partial suspension, by law, of the marriage relation. The dissolution is termed divorce from the bond of matrimony, or, in the Latin form of the expression, a vinculo matrimonii; the suspension, divorce from bed and board, a mensa et thoro. The former divorce puts an end to the marriage; the latter leaves it in full force. Bish. Mar. & Div. § 292.
The term divorce is sometimes also applied to a sentence of nullity, which establishes that a supposed or pretended marriage either never existed at all, or at least was voidable at the election of one or both of the parties. The more correct modern usage, however, confineis the signification of divorce to the dissolution of a valid marriage. What has been known as a divorce a mensa et thoro may more properly be termed a legal separation. So, also, a sentence or decree which renders a marriage void o6 initio, and bastardizes the issue, should be distinguished from one which is entirely prospective in its operation; and for that purpose the former may be termed a sentence of nullity.
History
See here the entry about the history of divorce in the U.S.
Divorce in Foreign Legal Encyclopedias
| Link | Description |
|---|---|
| Divorce | Divorce in the World Legal Encyclopedia. |
| Divorce | Divorce in the European Legal Encyclopedia. |
| Divorce | Divorce in the Asian Legal Encyclopedia. |
| Divorce | Divorce in the UK Legal Encyclopedia. |
| Divorce | Divorce in the Australian Legal Encyclopedia. |
Plain-English Law
Divorce as defined by Nolo’s Encyclopedia of Everyday Law (p. 437-455):
The legal termination of a marriage. doing business as (DBA) A situation in which a business owner operates a company under a name different from his or her real name.
Practical Information
Note: Some of this information was last updated in 1982
The legal separation of husband and wife, founded on matrimonial wrong, by the judgment (in U.S. law) of a court dissolving the marriage. A divorce may be granted by the state where the parties have their legal domicile (in U.S. law). A decree of divorce must be given full faith and credit in every other state. There has been much abuse in divorce practice because of the different standards in each state about what constitutes grounds for divorce. Fraudulent claims of domicile are often made to obtain a divorce in a state with less strict standards. No-fault divorce. Since 1969 must32 legislatures have passed statutes that provide for the dissolution of a marriage without regard to the fault of the parties. The court must find that the underlying relationship of the spouses to each other has broken down to the extent that a marriage exists in name only and that there appears to be no hope of reconciliation. The statutes vary widely in their terminology, but they basically provide for a legal dissolution of the marriage upon a finding by the court that the marriage is no longer viable. The statutes shift the inquiry of the court from a determination of the relative “fault” of the parties to an examination of the status of the marriage itself, thus the popular term no-fault divorce. The idea is to replace the concept of “fault” and substitute marriage failure or “irretrievable breakdown” as a basis for a decree dissolving a marriage. (Am.Jur. 2d Desk Book, item 121, gives the statutory grounds for divorce in the various states.)
(Revised by Ann De Vries)
What is Divorce?
For a meaning of it, read Divorce in the Legal Dictionary here. Browse and search more U.S. and international free legal definitions and legal terms related to Divorce.
Divorce and the Constitution
United States Constitution
According to the Encyclopedia of the American Constitution, about its article titled DIVORCE AND THE CONSTITUTIONThe constitutional power of the states to prescribe conditions for marriage and divorce went largely unchallenged until the mid-twentieth century. Once Americans became highly mobile, however, new constitutional questions emerged. Divorce might be difficult under some
(read more about Constitutional law entries here).
Divorce in the U.S.
Introduction to Divorce
Because of the traditional fault-based view of divorce-that the “innocent and injured” spouse should be able to obtain relief (that is, a divorce) from the spouse who has done some wrong-almost every state divorce law has in the past required the plaintiff to prove one of a number of legislatively recognized grounds. Typical grounds have included adultery (almost universally); desertion; habitual drunkenness; conviction of a felony; impotence (carried over by many state legislatures from annulment law); and, most commonly used by divorcing parties, “cruel and inhuman treatment.” Because the state’s interest in maintaining stable marriages was assumed, divorce suits could not be treated like other litigation. One spouse, the plaintiff, had to prove grounds even when both spouses wanted the divorce. Thus, divorce trials were filled with charges and countercharges and generally omitted investigation of the actual viability of the marriage.
Moreover, the divorce system required that the plaintiff be without fault; a variety of fault-based defenses were therefore recognized. A plaintiff could be denied a divorce if guilty of (1) condonation-that is, forgiving the defendant of the behavior that provided grounds for divorce; (2) recrimination-plaintiffs who had themselves given grounds for divorce were not entitled to the help of a court (the result of this doctrine was that if both parties wanted a divorce so badly that each provided grounds, neither could terminate the marriage); (3) connivance-if the defendant’s misbehavior could in some fashion be laid at the door of the plaintiff, that party was not entitled to a divorce; and (4) collusion-a divorce could not be obtained by a plaintiff who had somehow conspired with the defendant to provide evidence of grounds for divorce.
By the mid-20th century, most state legislatures had recognized one or more no-fault grounds for divorce, usually consisting of a substantial period (from one to five years) during which the spouses had lived “separate and apart”; sometimes insanity or incompatibility were acceptable grounds. Even these few no-fault legislative provisions, however, were interpreted narrowly by the courts; whenever possible, the fault-based notions of traditional doctrine were read into no-fault legislation.
The realities of divorce litigation in the U.S., however, were actually quite different from the legal requirements. Trial judges and lawyers, pressed by a society that in fact wanted free divorce and yet retained publicly the ideal of “until death do us part,” for many decades operated a legal system that permitted spouses to terminate their marriages without proving grounds if both parties wanted the divorce. This consensual-perjurious divorce was obtained by having the plaintiff in effect lie about grounds without objection from the defendant. As divorce became less stigmatizing and as serial marriages became more common, the burden on lawyers and judges to maintain a fictional fault-based divorce system became even greater.
The grounds for divorce differed from one state to another; thus, for example, before 1967 the only grounds for divorce in New York State was adultery. Moreover, judicial and public attitudes toward consensual-perjurious divorce varied from state to state. The difficulty of obtaining a divorce in several of the more populous eastern states, such as New York, New Jersey, Massachusetts, and Pennsylvania, eventually led to a substantial amount of “migratory divorce” in so-called divorce havens. For instance, a six-week gambling sojourn in Reno, Nevada, could culminate in a divorce and a return to the state of original domicile.
Before extensive legislative reform, some spouses living in states where divorce was difficult to obtain would travel to jurisdictions outside the continental United States (usually Mexico, Haiti, or the Dominican Republic) for a divorce decree that had none of the constitutional advantages, for purposes of local recognition, of a decree from another state. New York State courts were the only ones to extend formal recognition to Mexican divorce decrees, which were popular because they could be obtained after only one day’s residence in that country by either spouse. This formal acceptance by the courts of Mexican divorces was a recognition of both the number of New York marriages dissolved in Mexico and the unlikelihood of a change in the state divorce laws by the legislature.
The system of migratory divorces was considered by many as discriminatory against the poor, who could not afford to take up residence in another state or travel to a foreign country in order to get a divorce.” (1)
Divorce, Sexual Behaviour and the Law
Divorce: Main Elements
The coverage of Divorce includes the following element(s):
Division of Property, Alimony, and Prenuptial Agreements
Find out an overview of this topic, in relation to Divorce, in the legal Ecyclopedia.
References
See Also
- Marriage
- Family
- Divorce
Main Elements of Divorce
The United States Divorce Laws
General summary of the United States's divorce laws and procedures, such as residency requirements, “no-fault” grounds for divorce, waiting periods, and other topics related to divorce and the crisis of the family structure in the United States. The introductory entry provides a list of the acceptable grounds for getting a divorce in the United States (legal requirements for divorce), such as residency requirements, waiting periods, and basics of the no fault divorce laws. In general, see U.S. legal information on fault divorce and on non-fault divorce.
Resources
Notes and References
- Information about Divorce in the Encarta Online Encyclopedia
Guide to Divorce
Divorce: Main Elements
The coverage of Divorce includes the following element(s):
Division of Property, Alimony, and Prenuptial Agreements
Find out an overview of this topic, in relation to Divorce, in the legal Ecyclopedia.
References
See Also
- Marriage
- Family
- Divorce
Main Elements of Divorce
Resources
Further Reading
- Information about Divorce in the Gale Encyclopedia of American Law.
- Divorce in the Encyclopedia of Sexual Behavior and the Law
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