Understanding Divorce: Legal Definitions and Differences

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Divorce

Divorce, the ending of a marriage by court action that permits remarriage. Divorce differs from annulment and separation. Annulment is a decision that a marriage was void from the beginning. For example, laws prohibit the marriage of close relatives and of persons under certain ages; if such persons marry illegally a court may annul the marriage. Separation “from board and bed” is a kind of limited divorce; husband and wife live apart but are still legally married. Divorce, on the other hand, is a complete severance of the tie by which the parties were united.

Laws On Divorce

In the United States each state has its own laws on marriage and divorce. The legal reasons for which divorce may be granted are called grounds. They vary among the states. Formerly, a divorce could be obtained only if one spouse brought a lawsuit accusing the other of some fault—such as adultery, cruelty, desertion, alcohol or drug addiction, nonsupport, conviction of a felony, impotence, or insanity—recognized as grounds by state law. The sued spouse might contest the divorce (deny the accusation and argue that the divorce should not be granted) or not.

Almost all states now have laws providing for some type of “no-fault” divorce in cases where both spouses agree to end the marriage, thus allowing marriages no longer considered viable to be easily dissolved. Examples of “no-fault” grounds are irreconcilable differences and incompatibility of temperament. In such a divorce, neither party is considered to be at fault.

A person filing for a divorce must reside in the state where the application is made. A specific period of residence is required—most commonly, six months or a year.

Traditionally, property was awarded to the person whose name appeared on the title of ownership. Recently, state statutes have provided for equitable distribution of assets between husband and wife.

If there are children in a family being broken by divorce, the court must make provision for their care. Usually the courts have awarded custody of the children to the mother and have required the father to pay child support. Increasingly, however, fathers are being granted custody of the children or parents are being granted joint custody, and in a few instances women are being required to pay alimony to their former husbands. Courts are also granting visitation rights to grandparents.

History

Among some early peoples divorce was rare, among others it was common. In the later years of ancient Greece and Rome divorce was frequent. Among the ancient Jews the husband could divorce his wife at his pleasure, but gradually this arbitrary rule was changed. Jesus condemned divorce but some religious teachers hold that his sayings are not entirely clear. In Mark 10:9, Jesus spoke of marriage as a sacred bond. The Christian Church made matrimony a sacrament. Canon (church) law did not recognize divorce but it did approve separation under certain conditions. Church courts also granted annulment in some cases.

Today the Christian view of divorce varies from denomination to denomination. Some churches, such as the Roman Catholic, still follow the canon law and do not recognize divorce with the right to remarry. Others recognize divorce only under certain conditions, such as unfaithfulness. Still others have no official position.

Most Christian countries at one time followed canon law on marriage and divorce. This gradually changed during the 19th and 20th centuries as governments began to view marriage as a civil contract and thus one that could be dissolved by civil action. As a result, most governments enacted legislation providing for civil matrimony and divorce.

In 1949 South Carolina became the last state to recognize divorce. In 1970 California became the first to pass a “no-fault” divorce law, setting a precedent for the rest of the nation. Also during the 1970's a trend toward establishing more equitable terms for property settlements, child custody and support, and alimony developed. By the 1980's, nearly every state was revising its statutes covering family law, as divorce law had come to be called.