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Guide To Understanding Divorce

Divorce or dissolution of marriage is the ending of a marriage before the death of either spouse.

It can be contrasted with an annulment, which is a declaration that a marriage is void, though the effects of marriage may be recognized in such unions, such as spousal support or alimony, child custody, child support, and distribution of property.

In many developed countries, divorce rates increased markedly during the twentieth century. Among the states in which divorce has become commonplace are the United States, South Korea, and members of the European Union, with the exception of Malta (where all civil marriages are for life, because civil divorce is banned). In addition, acceptance of the single-parent family has resulted in many women deciding to have children outside marriage, as there is little remaining social stigma attached to unwed mothers in some societies. Japan retains a markedly lower divorce rate, though it has increased in recent years. The subject of divorce as a social phenomenon is an important research topic in sociology.

A divorce must be certified by a court of law, as a legal action is needed to dissolve the prior legal act of marriage. The terms of the divorce are also determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses have agreed on privately. Often, however, the spouses disagree about the terms of the divorce, which can lead to stressful (and expensive) litigation. A less adversarial approach to divorce settlements has emerged in recent years, known as mediation, an attempt to negotiate mutually acceptable resolution to conflicts.

Types of Divorce

There are several types of divorce: at-fault vs no-fault divorces, and summary divorce.

No Fault Divorce

Under a no-fault divorce system a marriage partner does not need to show that the other marriage partner did or was at fault to obtain a divorce. Common reasons for no-fault divorce include: incompatibility, irreconcilable differences, and irremediable breakdown of the marriage. No-fault divorce has been in operation in Australia since 1975 and the only thing the applicant needs to show is separation (or "deemed separation") for 12 months. The divorce application can be made by both parties jointly.

At-Fault Divorce

Fault divorces used to be the only way to break a marriage, and people who had differences only had the option to separate (and were prevented from legally remarrying).

However there are ways (defenses) to prevent a fault divorce:

  • Condonation

  • Connivance

  • Provocation

  • Collusion

A defense is expensive, and not usually practical as eventually most divorces are granted, especially when the public is not interested in forcing people to remain married.

Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches.

Fault divorce can affect the distribution of property, and will allow an immediate divorce, in states where there is a waiting period required for no-fault divorce.

Residency requirements vary from state to state, and a spouse may separate, move to a state with divorce laws of their choice, establish residency, and file. However, this typically does not change the state in which property and other issues are decided.

Summary Divorce

A summary (or simple) divorce is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand.

Key factors:

  • 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)

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) 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 children, etc.

Statistics

In the United States, in 2005 there were 7.5 new marriages per 1,000 people, and 3.6 divorces per 1,000, a ratio which has existed for many individual years since the 1960s. As many statisticians have pointed out, it is very hard to count the divorce rate, since it is hard to determine if a couple who divorce and get back together in that same year should be considered a divorce, so there is in fact no predictive relationship between the two annual totals. This method does not take account of the length of marriage, just the fact that a certain percentage of people were divorced and a certain number of people are married, rendering the statistic problematic. Nonetheless, the claim that "half of all marriages end in divorce" became widely accepted in the US in the 1970s, on the basis of this statistic, and has remained conventional wisdom. Pollster Lewis Harris in his 1987 book "Inside America" wrote that "the idea that half of American marriages are doomed is one of the most specious pieces of statistical nonsense ever perpetuated in modern times."

To establish an actual divorce rate requires tracking and analyzing significant samples of actual marriages through decades, which is not an easy task. Recent US scholarship based on such longterm tracking, reported for example in the New York Times on April 19, 2005, has found that about 60% of all marriages that result in divorce do so in the first decade, and more than 80% do so within the first 20 years; that the percentage of all marriages that eventually end in divorce peaked in the United States at about 41% around 1980, and has been slowly declining ever since, standing by 2002 at around 31%. Some have attributed this decline to the popularity of co-habitation without marriage[citation needed]. While in the 1960s and 1970s there was little difference among socioeconomic groups in divorce rates, diverging trends appeared starting around 1980 (e.g., the rate of divorce among college graduates had by 2002 dropped to near 20%, roughly half that of non-college graduates).

In the decades following introduction of no-fault divorce laws, there was an extraordinary increase in divorce rates, and more recent research has clarified that US divorce rates had been on a gentle increase since the 1890s (with a short-term decline during the Great Depression and a spike just after World War II). The long-term rate of increase steepened with the advent of no-fault divorce laws in the late 1960s; the gradual decline starting in the early 1980s has continued for a quarter-century thus far, often attributed to increased social acceptability of co-habitation without the benefit of marriage.

States in the US handle billions of dollars in alimony and child support arrangements, which commonly result from divorces. (According to a 2003 US census report], 43.7% of custodial mothers and 56.2% of custodial fathers, are divorced or separated.) A 2005 Census Bureau Report found that in 2002, $40 billion had been paid in support arrangements by 7.8 million payers, 84% of whom were men. States also collected federal incentives to collect support payments, with a potential incentive pool of up to $454 million in fiscal 2004.

The Italian national statistical institute found a 74% divorce increase between 1995 and 2005.

The divorce rate is generally low among Muslims, in comparison to other religious groups.[citation needed] This may be due to the somewhat strict limitations generally placed on divorce in Islam, as well as a very strong culturally-based stigma associated with it. However, at least in some Muslim populations, that rate may be rising. For example: in 2004 in Singapore (which has an 18% Muslim population) many feared that the divorce rate among Muslims had risen too high: 9 out of every 1,000 marriages, a ratio 3 times higher than Malaysia, and 5 times higher than Indonesia.

Who Initiates Divorce?

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. Evidence is given that among college-educated couples, the divorce filing rate by women approaches 90%.

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 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.


 
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