Like marriage, divorce in the United States is the province of the state governments, not the federal government. Divorce or "dissolution of marriage" is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the status of being single and permitting them to marry other individuals. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt, though these matters are usually only ancillary or consequential to the dissolution of the marriage.
Divorce laws vary from state to state. In some jurisdictions, divorce requires a party to claim fault of their partner that leads to the breakdown of marriage. But even in jurisdictions which have adopted the "no fault" principle in divorce proceedings, a court may still take into account the behavior of the parties when dividing property, debts, evaluating custody, and support. No-fault divorce on the grounds of "irreconcilable differences" is now available in all states. In recent years many states, including North Carolina and New York, require a one-year legal and physical separation prior to a formal divorce decree. This legal requirement has led to the creation of a separate, somewhat ambiguous category of relationships - "separated". Once an informal term used by individuals, it has now become a legal category designating someone who is neither married nor divorced.
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Married adults now divorce two-and-a-half times as often as adults did 20 years ago and four times as often as they did 50 years ago... between 40% and 60% of new marriages will eventually end in divorce. The probability within... the first five years is 20%, and the probability of its ending within the first 10 years is 33%... Perhaps 25% of children ages 16 and under live with a stepparent.
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—Brian K. Williams, Stacy C. Sawyer, Carl M. Wahlstrom, Marriages, Families & Intimate Relationships, 2005
Prior to the 1970s, divorcing spouses had to allege that the other spouse was guilty of a crime or sin like abandonment or adultery; when spouses simply could not get along, lawyers were forced[citation needed] to manufacture "uncontested" divorces. The no-fault divorce revolution began in 1969 in California; South Dakota was the last state to include no-fault divorce, in 1985. State law provides for child support where children are involved, and sometimes for alimony. The median length for a marriage in the US today is 11 years with 90% of all divorces being settled out of court.
In most jurisdictions, a divorce must be certified by a court of law to become effective. The terms of the divorce are usually determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses may have agreed to privately. In the absence of agreement, a contested divorce may be stressful to the spouses and lead to expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts.
In cases involving children, governments have a pressing interest in ensuring that disputes between parents do not spill over into the family courts. All states now require parents to file a parenting plan when they legally separate or divorce.
Divorce law
Divorce in the U.S. is governed by state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRS established rules on the deductibility of alimony, and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain health insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks.
Prior to the latter decades of the 20th century, a spouse seeking divorce had to show a cause such as cruelty, incurable mental illness, or adultery. Even in such cases, a divorce was barred in cases such as the suing spouse's procurement or connivance (contributing to the fault, such as by arranging for adultery), condonation (forgiving the fault either explicitly or by continuing to cohabit after knowing of it), or recrimination (the suing spouse also being guilty). By the 1960s, however, the use of collusive or deceptive practices to bypass the fault system had become ubiquitous, and there was widespread agreement that something had to change. The no-fault divorce "revolution" began in Oklahoma in 1953, but gained national impetus in 1969 in California, and was nearly completed in 1985 in South Dakota. New York is the sole remaining fault state.New York imposes a mandatory separation period before a divorce can be granted.
Typically, a county court’s family division hears requests for dissolution of marriages. The National Association of Women Lawyers was instrumental in convincing the American Bar Association to help create a Family Law section in many state courts, and pushed strongly for no-fault divorce law around 1960 (cf. Uniform Divorce Bill). In some states fault grounds remain, but all states except New York now provide other grounds as well, variously termed irreconcilable differences, irremediable breakdown, loss of affection, or similar. For such grounds no fault need be proven and little defense is possible. However, most states require mutual consent and/or a waiting period, from 6 months to 2 years of separation. Some have argued that the lack of means to contest a no-fault divorce makes a marriage contract the easiest of all contracts to dissolve, and in very recent years some have begun to favor moderate divorce reforms such as requiring mutual consent for no-fault divorce. However, no such laws have been passed as of this writing.
Fault grounds, when available, are sometimes still sought. This may be done where it reduces the waiting period otherwise required, or possibly in hopes of affecting decisions related to a divorce, such as child custody, child support, alimony, and so on. States vary in the admissibility of such evidence for those decisions. In any case, a no-fault divorce can be arranged far more easily, although the terms of the divorce can be and often are contested with respect to child-related matters and finances. Ultimately most cases are settled by the parties before trial.
Mediation is an alternative way of resolving divorce issues. It might be less adversarial (particularly important for any children), allow the parties greater control and privacy, save money, and generally achieve similar outcomes to the normal adversarial process. Also, courts will often approve a mediated settlement quickly.
Similar in concept is Collaborative law, where both sides are represented by attorneys but commit to negotiating a settlement without engaging in litigation. The additional support of attorneys and expert neutrals (such as financial specialists and coaches) may contribute to the success rate of a collaborative divorce. If the collaborative divorce process ends without the parties reaching a settlement, the collaborative lawyers become disqualified, and are replaced by new counsel. The reasoning is that the collaborative lawyers' sole interest will be to settle the case; and lawyers who specialize in collaborative divorce may have training and skills to assist parties to settle.
Non-court based dispute resolution approaches such as this may reduce the trauma of divorce for all parties. Some believe that mediation may not be appropriate for all relationships, especially those that included physical or emotional abuse, or an imbalance of power and knowledge about the parties' finances, for example. Most divorce lawyers encourage settlement even when alternative dispute resolution mechanisms are not employed.
States vary in their rules for division of assets in a divorce. Some states are "community property" states, but most are "equitable distribution" states, and others have elements of both. Most "community property" states start with the presumption that community assets will be divided equally, whereas "equitable distribution" states presume fairness may dictate more or less than half of the assets will be awarded to one spouse or the other. Attempt is made to assure the welfare of any minor children generally through their dependency. Thus, the spouse given custody (or the spouse with the greater share of residence time in the case of joint custody), may receive assets to compensate their greater child-care expenses. Commonly, assets acquired before marriage are considered individual, and assets acquired after, marital. Depending on the state, an equitable or equal division of assets is then sought.
Alimony, also known as 'maintenance' or 'spousal support' is still being granted in many cases, especially in longer term marriages. Alimony is more likely in cases where a spouse has remedial needs that must be met in order for the spouse to become fully employable, for example that one spouse gave up career opportunities or development in order to devote themselves to the family. Permanent alimony becomes likelier in lengthy marriages.
A decree of divorce will generally not be granted until all questions regarding child care and custody, division of property and assets, and ongoing financial support are resolved. Since the mid 1990s, a few states have enacted covenant marriage laws, which allow couples to voluntarily make a divorce more difficult for themselves to obtain than in the typical no-fault divorce action. For example, couples who choose to undertake a covenant marriage may be required to undergo counseling before a divorce can be granted, or to submit their conflicts to mediation. In states lacking such provisions, some couples sign contracts undertaking the same obligations.
In recent years, a few high-profile court cases have involved children "divorcing" their parents, or being legally declared emancipated minors. Perhaps the best known are those of actor Macaulay Culkin and Olympic gymnast Dominique Moceanu.However, these are not properly "divorce" cases, and different laws apply.
Divorces obtained by U.S. couples in a different country or jurisdiction
Due to the complex divorce procedures required in many places, especially including many states of the United States, some people seek divorces from other jurisdictions that have easier and quicker processes. Most of these places are commonly referred to negatively as "divorce mills."
There are four main reasons that people look to another jurisdiction for a divorce:
* New York does not have a no-fault divorce, such as "irreconcilable differences" as a legal cause for divorce, and fault is required (often with strict legal requirements) or a separation agreement in force for a year, such as New York State, thus requiring one year from the time the legal separation went into effect unless fault can be proven (possible in some cases just by affidavit however, but the other spouse must not contest the charges otherwise an often lengthy contested divorce is required.)
* Some jurisdictions have complex and long residency requirements as well as paperwork.
* Many jurisdictions take a long time to issue a finalized divorce, anywhere from 3 months to a year or even several in unique circumstances.
* Finally, some people are simply out to get around the financial hardship of a divorce, and get a divorce from a jurisdiction that allows fast uncontested divorces that offer little or no spousal support to the defendant.
Divorces granted by other countries are generally recognized by the United States as long as no person's rights were infringed upon. The most notable in this situation is the notion of "due process", which is required by the Constitution of the United States and thus is not flexible. This means that the spouse who is the defendant in the case must be notified of the proceedings and be given a certain time frame to respond to the allegations and state their case. This is only the case in a contested divorce, as in an uncontested divorce both spouses agree to the terms and sign off on the divorce; although in almost any if not all of these jurisdictions only one spouse is required to physically visit the country. While a contested divorce where due process was not observed is likely to be ruled invalid by a court in the United States if challenged, it is not illegal, as matrimonial law is private law and not criminal law, and is valid by default unless or until it is challenged (usually in the state or country of residency of either spouse.)
Thus, getting a contested divorce in another country is not likely to achieve the goals of the spouse requesting it, and is possible to even create a larger problem than before. An uncontested divorce is likely to be upheld in a court of law however, regardless of the general validity of contested divorces from these jurisdictions. While a "quick" contested divorce is likely if challenged to be declared invalid, it is, by case law, not considered bigamy if you remarry as long as the obtainer believed the divorce to be valid.
There are 5 major jurisdictions people look towards for a divorce in another state or country:
* The State of Nevada
* Haiti
* Mexico
* The Dominican Republic
* Guam
Haiti, Mexico, and The Dominican Republic are fairly similar in this regard. These countries people typically go to get an overnight/long weekend divorce, or to get a quick and relatively painless contested divorce (which are not valid unless due process has been observed.)
Quick Divorce in the Dominican Republic is available to foreigners or Dominican citizens residing abroad, when both spouses agree to file this divorce before Dominican Courts. This procedure is very simple and only requires the attendance of one of the spouses during the hearing which takes usually less than half an hour and you can leave Dominican Republic the same day in the afternoon. It takes ten to fifteen days to obtain a divorce decree.
The parties should sign a settlement agreement revised by an attorney in their jurisdiction in order to confirm it complies with spouses local laws. This document should include spouses complete data, a list of property, or statement of non-property, the statement regarding minor children and support agreement, your desire of divorcing before a Dominican Court and the authorization of one of the spouses to the other to attend to hearing on her/his behalf. The settlement agreement can be drafted by an attorney in your jurisdiction. Both these documents settlement agreement and power) must be signed by the parties before the Dominican Consulate nearest to your jurisdiction. A detailed instruction on legalization is to be provided to you when instructions to proceed are received.
The State of Nevada is commonly used for a few reasons. It only requires a 6-week stay to meet the residency requirements, the lowest in the United States. One easy way to demonstrate that you have met this requirement is by having another resident of Nevada simply sign an affidavit testifying to your residency there. Nevada allows for "irreconcilable differences" as a cause for divorce, the importance of which are mentioned above. Also, it has an extensive and straightforward system for marriage annulment, and attracts people who would prefer an annulment (which declares the marriage wasn't valid in the first place) than a divorce. One major reason this attracts people is it allows for an easy bypassing of the mandatory 50/50 split in community property states, most notably the adjoining State of California. Nevada, however, is also a community property state and hence will follow similar rules in a divorce proceeding.
Guam had (and still has some) very attractive reasons for obtaining a divorce there. Guam is a territory of the United States. Because Guam is a territory of the United States, its courts are United States jurisdictional courts and the divorces it issues are valid in all of the states in the US. Prior to January 1, 2006, Guam allowed for an uncontested divorce without either spouse visiting the territory at all. After being charged as a "divorce mill", including by many in its own government, an agreement was made with the lawyers and other lobbyists who did not want to change the law to now require a 7-day stay in Guam (as opposed to the much longer ones proposed) to obtain a divorce. Guam allows for "irreconcilable differences" as a cause for divorce, and Guam is much quicker to award a finalized divorce than many US states, taking a few weeks at most. Before the law was changed, it was a very attractive alternative for many Americans, as it was also quite affordable. However, due to its location in Southeast Asia, a trip there would be very expensive and not a viable alternative for most Americans.
In the case of disputed custody, almost all lawyers would strongly advise you stay to the jurisdiction applicable to the dispute, i.e. the country or state of you or your spouse's residence. Even if not disputed, the spouse could later dispute it and potentially invalidate another jurisdiction's ruling.
Types of divorce
Though divorce laws vary between jurisdiction, 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, and support.
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.
No-fault divorce
Under a no-fault divorce system the dissolution of a marriage does not require an allegation or proof of fault of either party. Since August 2010 (when New York Governor David Patterson signed no-fault into law), all fifty states of the United States have adopted no-fault divorce laws, with grounds for divorce including incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.
At-fault divorce,
Fault divorces used to be the only way to break a marriage, and people who had differences, but did not qualify as "at fault", only had the option to separate (and were prevented from legally remarrying).
In August 2010 "no-fault" divorce became law in the state of New York, making it the last and final US State to do so.
However there are ways (defenses) to prevent a fault divorce:
* Collusion
* Condonation
* Connivance
* Provocation
A defense is 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.
Summary divorce
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 factor:
* Short marriage (under 5 years)
* No children (or, in some states, they have resolved custody and set child support payments)
* 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
It is estimated that upwards of 95% of divorces in the US 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, deal with the custody of their children.
Collaborative divorce
Collaborative divorce is becoming a popular 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 substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot later be used in further legal proceedings, as the collaborative process is confidential proceedings. Furthermore, there are no set enforceab time lines for completion of a divorce using collaborative divorce.
Mediated divorce
Divorce mediation is an alternative to traditional divorce litigation In a divorce mediation session, a mediator facilitates the discussion between the husband and wife 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 the party's attorneys or 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 without attorneys. Divorce mediators may be attorneys who have experience in divorce cases. Divorce mediation can be significantly less expensive than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.
Civil Courts
Civil courts gradually assumed greater involvement in the issues arising from the breakdown of marriage on the basis that a marriage was a civil contract. However, the grounds and precedents of the ecclesiastic courts were adopted by civil courts. As the civil courts assumed the power to dissolve marriages, courts still strictly construed the circumstances under which they would grant a divorce,and now considered divorce to be contrary to public policy. Because divorce was considered to be against the public interest, civil courts refused to grant a divorce if evidence revealed any hint of complicity between the husband and wife to divorce, or if they attempted to manufacture grounds for a divorce. Divorce was granted only because one party to the marriage had violated a sacred vow to the "innocent spouse." If both husband and wife were guilty, "neither would be allowed to escape the bonds of marriage." Eventually, the idea that a marriage could be dissolved in cases in which one of the parties violated the sacred vow gradually allowed expansion of the grounds upon which divorce could be granted from those grounds which existed at the time of the marriage to grounds which occurred after the marriage, but which exemplified violation of that vow, such as abandonment, adultery, or “extreme cruelty.”
Statistics (U.S.)
Initiation
The National Center for Health Statistics reports that from 1975 to 1988 in the US, 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.
According to a study published in the American Law and Economics Review, women currently file slightly more than two-thirds of divorce cases in the US. There is some variation among states, and the numbers have also varied over time, with about 60% of filings by women in most of the 19th century, and over 70% by women in some states just after no-fault divorce was introduced, according to the paper.
Custody
In their study titled "Child Custody Policies and Divorce Rates in the US," Kuhn and Guidubaldi find it reasonable to conclude that women anticipate advantages to being single, rather than remaining married.
When women anticipate a clear gender bias in the courts regarding custody, they expect to be the primary residential parent for the children and recipient of the resulting financial child support, maintaining the marital residence, receiving half of all marital property, and gaining total freedom to establish new social relationships. In their detailed analysis of divorce rates, Kuhn and Guidubaldi conclude that acceptance of joint physical custody may reduce divorce. States whose family law policies, statutes, or judicial practice encourage joint custody have shown a greater decline in their divorce rates than those that favor sole custody.
Rates of divorce
"Rate of divorce" usually refers the number of divorces that occur in the population during a given period. However it is also used in common parlance to refer to the likelihood of a given marriage ending in divorce (as opposed to the death of a spouse). A common myth is that half all marriages in the United States end in divorce. In reality this is impossible to measure accurately and this myth is based on an misinterpretation of data stating that, in any given year, the number of marriages is about twice the number of divorces. But those divorces are not necessarily of marriages made in the same year, but could have occurred at any time, rendering this statistic irrelevant to marital outcome.
More reliable statistics are available that measure the percentage of marriages that end in divorce within 10 years. One data set based on age of the bride indicates that the rate is 48% for people under 18, 40% for ages 18–19, 29% for 20-24, and 24% for 25 and older.
Other variables that either negatively or positively affect rates of divorce include:
* race/ethnicity
* importance of religion to the couple
* divorce in family of origin
* if the woman has a history of forcible rape by a man before the marriage
* Timing of the first birth of any children (before marriage, within 7 months, after 7 months, or never)
* If one spouse has Generalized Anxiety Disorder
Divorce rate by state
Rates are per 100,000 persons.
(source:wikipedia)
The statistics and details shown are truly alarming so an initiative must be done to preserve marriages and that should start with the couples. Know more divorce at Divorce Nation.
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