ESSAY ABOUT DIVORCE

Divorce (or the dissolution of marriage) is the termination of a marital union, the canceling of the legal duties and responsibilities of marriage and the dissolving of the bonds of matrimony between a married couple. Divorce is unlike annulment which declares the marriage null and void. Divorce laws vary considerably around the world, but in most countries it requires the sanction of a court or other authority in a legal process. The legal process of divorce may also involve issues of alimony (spousal support), child custody, child support, distribution of property, and division of debt. In most countries monogamy is required by law, so divorce allows each former partner to marry another; where polygyny is legal but polyandry is not, divorce allows the woman to marry a new husband.

Divorce can be a stressful experience affecting finances, living arrangements, household jobs, schedules and more. If the family includes children, they may be deeply affected.[1]

The only countries that do not allow divorce are the Philippines and the Vatican City, an ecclesiastical state, which has no procedure for divorce. Countries that have relatively recently legalized divorce are Italy (1970), Portugal (1975), Brazil (1977), Spain (1981), Ireland (1996), Chile (2004)[2] and Malta (2011).
Law[edit]See also: Divorce law by country
Though divorce laws vary between jurisdictions, there are two basic approaches to divorce: fault based and no-fault based. However, even in some jurisdictions that do not require a party to claim fault of their partner, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, shared care arrangements and support. In some states and regions one spouse may be forced to pay the attorney's fees of another spouse.[3]

Laws vary as to the waiting period before a divorce is effective. Also, residency requirements vary. However, issues of division of property are typically determined by the law of the jurisdiction in which the property is located.[4]

Types of divorce[edit]Despite this, in some countries the courts will seldom apply principles of fault, but might willingly hold a party liable for a breach of a fiduciary duty to his or her spouse (for example, see Family Code Sections 720 and 1100 of the California Family Code). Grounds for divorce differs from state to state in the U.S. Some states have no fault divorce; some states require a declaration of fault on the part of one partner or both; Some state allow either method.[5]

In most jurisdictions, a divorce must be certified (or ordered by a Judge) by a court of law to come into effect. The terms of the divorce are usually determined by the courts, though they may take into account prenuptial agreements or post-nuptial agreements, or simply ratify terms that the spouses may have agreed to privately (this is not true in the United States, where agreements related to the marriage typically have to be rendered in writing to be enforceable). In absence of agreement, a contested divorce may be stressful to the spouses.

In some other countries,[where?] when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non-judiciary administrative entity. The effect of a divorce is that both parties are free to marry again.

Contested divorce[edit]Contested divorces mean that one of several issues are required to be heard by a judge at trial level—this is more expensive, and the parties will have to pay for a lawyer's time and preparation. In such a divorce the spouses are not able to agree on issues for instance child custody and division of marital assets. In such situations, the litigation process takes longer to conclude.[6] The judge controls the outcome of the case.[7] Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce settlement, which negotiate mutually acceptable resolution to conflicts. This principle in the United States is called 'Alternative Dispute Resolution' and has gained popularity.

At-fault divorce[edit]Before the late 1960s, nearly all countries that permitted divorce required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is available in all 50 states, as is the case with Australia, New Zealand, Canada and other western countries.

Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.[citation needed]

The grounds for a divorce which a party could raise and need to prove included 'desertion,' 'abandonment,' 'cruelty,' or 'adultery.' The requirement of proving a ground was revised (and withdrawn) by the terms of 'no-fault' statutes, which became popular in the United Kingdom, Australia, the United States, Canada, South Africa, and New Zealand in the late 1960s and early 1970s. In 'no-fault' jurisdictions, a simple, general allegation of 'irreconcilable differences,' or 'irretrievable break-down' with respect to the marriage relationship, sufficed to establish the end of the marriage.

No-fault divorce[edit]Some Western jurisdictions have a no-fault divorce system, which requires no allegation or proof of fault of either party.[8] The barest of assertions suffice. For example, in countries that require "irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been irreparable by these differences is enough for granting a divorce. Courts will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".

The application can be made by either party or by both parties jointly.

In jurisdictions adopting the 'no-fault' principle in divorce proceedings, some courts may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support—facts that almost always have considerable weight in fault proceedings.[citation needed] In custody cases, courts might consider factors that may appear like 'fault' based issues but are really related to protection of the child or children. These may include but are not limited to one or both parent's substance abuse, history of violence, cruelty, instability, neglect or endangerment.

Summary divorce[edit]A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.

Key factors:

Short marriage (less than 5 years)
No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage)
Minimal or no real property (no mortgage)
Marital property is under a threshold (around $35,000 not including vehicles)
Each spouse's personal property is under a threshold (typically the same as marital property)
Uncontested divorce[edit]It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court.[citation needed]

Where the issues are not complex and the parties are cooperative, a settlement often can be directly negotiated between them. In the majority of cases, forms are acquired from their respective state websites and a filing fee is paid to the state.[9] Most U.S. states charge between $175 and $350 for a simple divorce filing.[10][11][12] Collaborative divorce and mediated divorce are considered uncontested divorces.

Because of additional requirements that must be met, most military divorces are typically uncontested.

In the United States, many state court systems are experiencing an increasing proportion of pro se (i.e., litigants represent themselves without a lawyer) in divorce cases.[13] In San Diego, for example, the number of divorce filings involving at least one self-representing litigant rose from 46% in 1992 to 77% in 2000, and in Florida from 66% in 1999 to 73% in 2001.[13] Urban courts in California report that approximately 80% of the new divorce filings are filed pro se.[14]

Collaborative divorce[edit]Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.

Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods, e.g., going to court. Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved, and the possibility of going back to court post-separation or divorce is minimized. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.

Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. There are two exceptions: 1) Any affidavit sworn in the course of the collaboration and vouching documentation attaching to same and 2) any interim agreement made and signed off in the course of the collaboration or correspondence relating thereto. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete, whereas others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks, and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.[citation needed]

Mediated divorce[edit]Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party's attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Some mediation companies, such as Wevorce, also pair clients with counselors, financial planners and other professionals to work through common mediation sticking points.[15] Divorce mediators may be attorneys who have experience in divorce cases, or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.[citation needed]

Polygamy and divorce[edit]Polygamy is a significant structural factor governing divorce in countries where this is permitted. Little-to-no analysis has been completed to explicitly explain the link between marital instability and polygamy which leads to divorce. The frequency of divorce rises in polygamous marriages compared to monogamous relationships. Within polygamous unions, differences in conjugal stability are found to occur by wife order. There are 3 main mechanisms through which polygamy affects divorce: economic restraint, sexual satisfaction, and childlessness. Many women escape economic restraint through divorcing their spouses when they are allowed to initiate a divorce.[16]

"Just Divorced!" hand-written on an automobile's rear window.Effects of divorce[edit]Some of the effects associated with divorce include academic, behavioral, and psychological problems. Although this may not always be true, studies suggest that children from divorced families are more likely to exhibit such behavioral issues than those from non-divorced families.[17]

Divorce and relationships[edit]Research done at Northern Illinois University on Family and Child Studies suggests that divorce can have a positive effect on families due to less conflict in the home. There are, however, many instances where the parent-child relationship may suffer due to divorce. Financial support is many times lost when an adult goes through a divorce. The adult may be obligated to obtain additional work to maintain financial stability. In turn, this can lead to a negative relationship between the parent and child. The relationship may suffer due to lack of attention towards the child as well as minimal parental supervision[17]

Studies have also shown that parental skills decrease after a divorce occurs; however, this effect is only a temporary change. “A number of researchers have shown that a disequilibrium, including diminished parenting skills, occurs in the year following the divorce but that by two years after the divorce re-stabilization has occurred and parenting skills have improved”[18]

Some couples choose divorce even when one spouse's desire to remain married is greater than the other spouse's desire to obtain a divorce. In economics this is known as the Zelder Paradox, and is more common with marriages that have produced children, and less common with childless couples.

In a study done by the American Psychological Association on a parents’ relocation after a divorce, researchers found that a move has a long-term effect on children. In the first study done amongst 2,000 college students on the effects of parental relocation relating to the well being if their children after divorce, researchers found major differences. In divorced families where one parent moved, the students received less financial support from their parents compared with divorced families where neither parent moved. These findings also imply other negative outcomes for these students such as more distress related to the divorce and did not feel a sense of emotional support from their parents. Although the data suggests negative outcomes for these students whose parents relocate after divorce, there is not enough research that can alone prove the overall well-being of the child[19] A newer study in the Journal of Family Psychology found that parents who move more than an hour away from their children after a divorce are much less well off than those parents who stayed in the same location[20]

Effects of divorce on children[edit]Psychological[edit]Divorce is associated with diminished psychological well-being in children and adult offspring of divorced parents, including greater unhappiness, less satisfaction with life, weaker sense of personal control, anxiety, depression, and greater use of mental health services. A preponderance of evidence indicates that there is a causal effect between divorce and these outcomes.[21]

Children of divorced parents are also more likely to experience conflict in their own marriages, and are more likely to experience divorce themselves. They are also more likely to be involved in short-term cohabiting relationships, which often dissolve before marriage.[21]

According to Nicholas Wall, former President of the Family Division of the English High Court, "People think that post-separation parenting is easy - in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute. There is nothing worse, for most children, than for their parents to denigrate each other. Parents simply do not realize the damage they do to their children by the battles they wage over them. Separating parents rarely behave reasonably, although they always believe that they are doing so, and that the other party is behaving unreasonably."[22]

Although not the intention of most parents, putting children in the middle of conflict is particularly detrimental. Examples of this are asking children to carry messages between parents, grilling children about the other parent's activities, telling children the other parent does not love them, and putting the other parent down in front of the children. Poorly managed conflict between parents increases children's risk of behavior problems, depression, substance abuse and dependence, poor social skills, and poor academic performance. Fortunately, there are approaches by which divorce professionals can help parents reduce conflict. Options include mediation, collaborative divorce, coparent counseling, and parenting coordination.[23]

Exposure to marital conflict and instability, most often has negative consequences for children. Several mechanisms are likely to be responsible. First, observing overt conflict between parents is a direct stressor for children. Observational studies reveal that children react to inter-parental conflict with fear, anger, or the inhibition of normal behavior. Preschool children - who tend to be egocentric - may blame themselves for marital conflict, resulting in feelings of guilt and lowered self-esteem. Conflict between parents also tends to spill over and negatively affect the quality of parents' interactions with their children. Researchers found that the associations between marital conflict and children's externalizing and internalizing problems were largely mediated by parents' use of harsh punishment and parent-child conflict. Furthermore, modeling verbal or physical aggression, parents "teach" their children that disagreements are resolved through conflict rather than calm discussion. As a result, children may not learn the social skills (such as the ability to negotiate and reach compromises) that are necessary to form mutually rewarding relationships with peers [24]

Academic and socioeconomic[edit]Children who have experienced a divorce frequently have lower academic achievement than children from non-divorced families[25] In a review done on family and school factors related to adolescents’ academic performance, it noted that it is two times more likely for a child from a divorced family to drop out of high school than a child from a non-divorced family. These children from divorced families may also be less likely to attend college, resulting in the discontinuation of their academic career[26]

Many times academic problems are associated with those children from single-parent families. Studies have shown that this issue may be directly related to the economical influence of divorce. A divorce may result in the parent and children moving to an area with a higher poverty rate and a poor education system all due to the financial struggles of a single parent.[27]

Children of divorced parents also achieve lower levels of socioeconomic status, income, and wealth accumulation than children of continuously married parents. These outcomes are associated with lower educational achievement.[21]

Divorce amongst the elderly[edit]According to a New York Times article, “More Americans Rejecting Marriage in 50s and Beyond”, in the past 20 years, the divorce rate has increased over 50% amongst the baby boomers. More and more adults are staying single and according to an analysis of census data conducted at Bowling Green State University in Ohio, they say the divorce numbers will continue to rise. Baby boomers that remain unmarried are five times more likely to live in poverty compared to those who are married. According to the statistics, it will also be three times as hard to receive food stamps, public assistance or disability payments[28]

Sociologists believe that the rise in the number of older Americans who are not married is a result of factors such as longevity and economics. Women, especially, are becoming more and more financially independent which allows them to feel more secure with being alone. In previous generations, being divorced or single was seen differently than it is now. This has resulted in less pressure for baby boomers to marry or stay married.[28]

Statistics[edit]Further information: Divorce demography
United States[edit]Main article: Divorce in the United States
On average, first marriages that end in divorce last about eight years.[29] Of the first marriages for women from 1955 to 1959, about 79% marked their 15th anniversary, compared with only 57% for women who married for the first time from 1985 to 1989.[29] The median time between divorce and a second marriage was about three and a half years.[29]

In 2009, the divorce rate declined.[30]

A 1995 study found a wide range of factors correlating with the divorce rate including frequency of sex, wealth, race, and religious commitment.[31][clarification needed]

In 2001, marriages between people of different faiths were three times more likely to be divorced than those of the same faith. In a 1993 study, members of two mainline Protestant religions had a 20% chance of being divorced in 5 years; a Catholic and an Evangelical, a 33% chance; a Jew and a Christian, a 40% chance.[32]

A study[33] by the Barna Group,[34] that conducts polls of interest to Christians, reports that a higher divorce rate was associated with infrequent church attendance.

Success in marriage has been associated with higher education and higher age. 81% of college graduates, over 26 years of age, who wed in the 1980s, were still married 20 years later. 65% of college graduates under 26, who married in the 1980s, were still married 20 years later. 49% of high school graduates under 26 years old, who married in the 1980s, were still married 20 years later.[35] Population studies have found that in 2004 and 2008, liberal-voting states have lower rates of divorce than conservative-voting states, possibly because people in liberal states tend to wait longer before getting married.[36] 2.9% of adults age 35–39 without a college degree divorced in the year 2009, compared with 1.6% with a college education.[37]

The National Center for Health Statistics reports that from 1975 to 1988 in the U.S., in families with children present, wives file for divorce in approximately two-thirds of cases. In 1975, 71.4% of the cases were filed by women, and in 1988, 65% were filed by women.[38] It is estimated that upwards of 95% of divorces in the U.S. are "uncontested", because the two parties are able to come to an agreement without a hearing (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues.

A 2008 study by Jenifer L. Bratter and Rosalind B. King conducted on behalf of the Education Resources Information Center examined whether crossing racial boundaries increased the risk of divorce.[39] Using the 2002 National Survey of Family Growth (Cycle VI), the likelihood of divorce for interracial couples to that of same-race couples was compared. Comparisons across marriage cohorts revealed that, overall, interracial couples have higher rates of divorce, particularly for those who married during the late 1980s.[39] The authors found that gender plays a significant role in interracial divorce dynamics: According to the adjusted models predicting divorce as of the 10th year of marriage, interracial marriages that are the most vulnerable involve white females and non-white males (with the exception of white females/Hispanic white males) relative to white/white couples.[39] White wife/black husband marriages are twice as likely to divorce by the 10th year of marriage compared to white/white couples, while white wife/Asian husband marriages are 59% more likely to end in divorce compared to white/white unions.[39] Conversely, white men/non-white women couples show either very little or no differences in divorce rates.[39] Asian wife/white husband marriages show only 4% greater likelihood of divorce by the 10th year of marriage than white/white couples.[39] In the case of black wife/white husband marriages, divorce by the 10th year of marriage is 44% less likely than among white/white unions.[39] Intermarriages that did not cross a racial barrier, which was the case for white/Hispanic white couples, showed statistically similar likelihoods of divorcing as white/white marriages.[39]

A 2011 study found a 1% increase in the unemployment rate correlated with a 1% decrease in the divorce rate,[40] presumably because more people were financially challenged to afford the legal proceedings.