Divorce and Separation: An Overview
A divorce formally dissolves a legal marriage. While married couples do not possess a constitutional or legal right to divorce, states permit divorces because to do so best serves public policy. To ensure that a particular divorce serves public policy interests, some states require a "cooling-off period," which prescribes a time period after legal separation that spouses must bear before they can initiate divorce proceedings.
Courts in the United States currently recognize two types of divorces: absolute divorce, known as "divorce a vinculo matrimonii" and limited divorce, known as "divorce a menso et thoro". To obtain an absolute divorce, courts require some type of evidentiary showing of misconduct or wrongdoing on one spouse's part. An absolute divorce is a judicial termination of a legal marriage. An absolute divorce results in the changing back of both parties' statuses to single. Limited divorces are typically referred to as separation decrees. Limited divorces result in termination of the right to cohabitate but the court refrains from officially dissolving the marriage and the parties' statuses remain unchanged. Some states permit conversion divorce. Conversion divorce transforms a legal separation into a legal divorce after both parties have been separated for a statutorily-prescribed period of time.
Many states have enacted no-fault divorce statutes. No fault divorce statutes do not require showing spousal misconduct and are a response to outdated divorce statutes that require proof of adultery or some other unsavory act in a court of law by the divorcing party. Nevertheless, even today, not all states have enacted no fault divorce statutes. Instead, the court must only find 1) that the relationship is no longer viable, 2) that irreconcilable differences have caused an irremediable breakdown of the marriage, 3) that discord or conflict of personalities have destroyed the legit ends of the marital relationship and prevents any reasonable possibility of reconciliation, or 4) that the marriage is irretrievably broken.
Following a divorce, the court must divide the property between the spouses. Before legislatures equalized property allocation between both spouses, many divorce statutes substantially favored property allocation to the wage-earning spouse. These statutes greatly disadvantaged women disproportionately because during the 18th, 19th, and early-20th centuries, the participation of women in the workplace was much less than it has become during the latter-half of the 20th century and early part of the 21st century. The statutes failed to account for the contributions of the spouse as homemaker and child-raiser.
Modern courts recognize two different types of property during property division proceedings - marital property and separate property. Marital property constitutes any property that the spouses acquire individually or jointly during the course of marriage. Separate property constitutes any property that one spouse purchased and possessed prior to the marriage and that did not substantially change in value during the course of the marriage because of the efforts of one or both spouses. If the separate property-owning spouse trades the property for other property or sells the property, the newly-acquired property or funds in consideration of the sale remain separate property.
Modern division of property statutes strive for an equitable division of the marital assets. An equitable division does not necessarily involve an equal division but rather an allocation that comports with fairness and justice after a consideration of the totality of the circumstances. By dividing the assets equitably, a judge endeavors to effect the final separation of the parties and to enable both parties to start their post-marital lives with some degree of financial self-sufficiency. While various jurisdictions permit recognition of different factors, most courts at least recognize the following factors: contribution to the accumulation of marital property, the respective parties' liabilities, whether one spouse received income-producing property while the other did not, the duration of the marriage, the age and health of the respective parties, the earning capacity and employability of the respective parties, the value of each party's separate property, the pension and retirement rights of each party, whether one party will receive custodial and child support provisions, the respective contributions of the spouses as a homemaker and as a parent, the tax consequences of the allocations, and whether one spouse's marital misconduct caused the divorce. Most jurisdictions also give the family court judge broad jurisdiction by providing judges with the right to consider any other just and proper factor.
When assigning property, judges cannot transfer the separate property of one spouse to another spouse without the legislature having previously passed an enabling statute. Whether such an enabling statute exists varies between jurisdictions.
Alimony refers to payments from one spouse to the other. A court can order one spouse to pay three different types of alimony - permanent alimony, temporary alimony, and rehabilitative alimony. Permanent alimony requires the payer to continue paying either for the rest of the payer's life or until the spouse receiving payments remarries. Temporary alimony requires payments over a short interval of time so that the payment recipient can stand alone once again. The period of time covers the length of the property division litigation. Similar to temporary alimony, rehabilitative alimony requires the payer to give the recipient short-term alimony after the property division proceedings have concluded. Rehabilitative alimony endeavors to help a spouse with lesser employability or earning capacity become adjusted to a new post-marital life.
Courts allocate alimony with the intention of permitting a spouse to maintain the standard of living to which the spouse has become accustomed. Factors affecting whether the court awards alimony include the marriage's length, the length of separation before divorce, the parties' ages, the parties' respective incomes, the parties' future financial prospects, the health of the parties, and the parties' respective faults in causing the marriage's demise.
If a couple had children together while married, a court may require one spouse to pay child support to the spouse with custody, but one should note that alimony and child support differ.
menu of sources
Federal Judicial Decisions
- U.S. Supreme Court:
- U.S. Circuit Courts of Appeals: Recent Divorce Decisions
- State Divorce Laws
- Uniform Laws: (See LII Locator for Uniform Matrimonial, Family, and Health Laws):
- Uniform Divorce Recognition Act (adopted in California, Nebraska, New Hampshire, North Dakota, Rhode Island, South Carolina, Wisconsin)
- Uniform Child Custody Jurisdiction Act (adopted in all 50 states plus the District of Columbia)
- Uniform Civil Liability for Support Act (adopted in Maine, New Hampshire, Utah)
- Uniform Marital Property Act (adopted in Wisconsin)
- Uniform Marriage and Divorce Act (adopted in Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, Washington)
- Uniform Premarital Agreement Act (adopted in Arizona, Arkansas, California, Hawaii, Illinois, Iowa, Kansas, Maine, Montana, Nevada, New Jersey, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Virginia)
- Uniform Interstate Family Support Act (adopted Arizona, Arkansas, Colorado, Montana, Nebraska, Oregon, Texas, Washington)
State Judicial Decisions
- N.Y. Court of Appeals:
- Appellate Decisions from Other States
Key Internet Sources
- Divorce - a short course
- Divorce Magazine
- Family Law Software
- LII resources: divorce