In the infancy of societies, the chiefs of the state shape its institutions; later the institutions shape the chiefs of state. ~Baron de Montesquieu


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Divorce is the legal termination of a marriage. In some states, divorce is called dissolution or dissolution of marriage. A divorce or dissolution severs (ends) a marriage.

This discussion refers to civil annulments; within the Roman Catholic Church, a couple may obtain a religious annulment after obtaining a civil divorce, in order for one or both spouses to remarry.

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SIDE NOTE - ANNULMENT

Annulment is a court procedure that dissolves a marriage and treats it as though it never happened. Annulments may be obtained for one of the following reasons:

  • misrepresentation (for example, a spouse lied about the capacity to have children, stated that she had reached the age of consent or failed to say that she was still married to someone else)
  • concealment (for example, concealing an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease or impotency)
  • refusal or inability to consummate the marriage - that is, refusal or inability of a spouse to have sexual intercourse with the other spouse, or
  • misunderstanding (for example, one person wanted children and the other did not)

In the past, when divorces were difficult to obtain because fault had to be proved - until 1966, adultery was the only ground for divorce in New York - judges often interpreted annulment statutes liberally in order to make annulments readily available. Today, however, it is relatively easy to obtain a divorce in most states and annulments are rare. Where an annulment occurs after children have been born, those children are not considered illegitimate, even though the parents were "never married."
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THERE ARE FOUR TYPES OF SEPARATION:

1. Trial Separation

When a couple lives apart for a test period - that is, to decide whether to permanently go separate ways or to get back together (called reconciliation) - it's called a trial separation.

2. Living Apart

When spouses no longer reside in the same dwelling, they are said to be living apart even if they occasionally have sexual relations with each other. In some states, living apart without intending to reunite changes the spouses' property rights. For example, some states consider property accumulated and debts incurred between living apart and divorce to be the separate property or debt of the person who accumulated or incurred it. If the couple lives apart for a trial period with the hope of reconciliation, however, even if they don't get back together, the assets and debts they accumulate or incur during the trial period remain jointly owned until they decide to permanently live apart or obtain a divorce or legal separation.

3. Permanent Separation

When a couple decides to split up, it's often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. In many states, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them.

4. Legal Separation

A legal separation results when the parties separate and a court rules on the division of property, alimony, child support, custody and visitation - but does not grant a divorce. This separation is also called a separation from bed and board. The money awarded for support of the spouse and children under these circumstances is often called separate maintenance (as opposed to alimony and child support).

Legal separation is usually a substitute for, and not a step toward, divorce. It often occurs when there is a religious objection to divorce, or if a dependent spouse needs medical care and will not qualify for it on her own - but will maintain coverage under her spouse's plan if they stay married. Most couples who intend to divorce begin living apart without going through formal separation procedures. Prior to no-fault divorces, however, legal separations were often obtained by couples wishing to live apart (who needed to get legal permission from the court to do so).

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SIDE NOTE - IT WOULDN'T BE LAW IF WE COULDN'T SAY IT IN LATIN

Vinculo matrimonii. Vinculo matrimonii is a Latin term literally meaning "from the chains of matrimony," and which has come to mean a complete divorce, as opposed to a legal separation.

A mensa et thoro. A mensa et thoro is a Latin term meaning "from table and bed" which became used in English as "from bed and board." A separation a mensa et thoro - that is, a separation from bed and board - is another term for a legal separation.
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In a few states, a legal separation serves another purpose. If a couple legally separates for a set period of time - between six months and five years - they will have established a ground for a no-fault divorce.

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SIDE NOTE - SEPARATION AGREEMENT

If a couple agrees to all the terms of a legal separation, or agrees to live apart for a lengthy period of time in contemplation of divorce, the parties often write and sign a separation agreement which settles the property, custody, alimony and child support issues between them. The agreement should be presented to the court for approval if it is part of a legal separation. The agreement becomes part of the legal separation order and does away with the necessity of having a trial on the issues covered by the agreement. It serves the same purpose as a divorce agreement except that the couple does not obtain a divorce at that time.

The term separation agreement is also used to refer to agreements made by couples living apart which are later incorporated into divorce agreements.
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DEFAULT DIVORCE

If a spouse who is served with a summons and complaint for divorce fails to file a formal response with the court, the court will automatically grant the divorce, called a default or uncontested divorce. Many divorces proceed this way because the spouses have worked everything out and there's no reason for both to go to court (and pay the court costs). Without such cooperation, however, you should never ignore a summons and complaint unless you truly do not wish to contest the matter.

DIVISIBLE DIVORCE

A divisible divorce is one where the divorce itself is granted, terminating the marriage. Issues incident to the divorce, such as alimony, child support, custody, visitation and division of property, however, are decided at a later hearing or trial. Divisible divorces usually occur when a couple cannot agree on some incidental issues, but one spouse wishes to remarry or be divorced for income tax reasons. Divisible divorces may also occur when a court has subject-matter jurisdiction over the divorce (because the plaintiff lives in the state), but doesn't have personal jurisdiction over the defendant. (See the Court Procedures chapter for definitions of these terms.) In this situation, the court is authorized to grant the divorce itself, but can't rule on the other issues without personal jurisdiction over the defendant.

BIFURCATED DIVORCE

A bifurcated divorce is another term for a divisible divorce.

CONVERTIBLE DIVORCE

A convertible divorce is one which is obtained by converting a legal separation to a divorce.

Example: Kate and Robert have been married for 15 years. Kate has severe back problems and is unable to work. She has received extensive medical care, which has been paid for through Robert's medical insurance; she is unable to obtain her own insurance. Kate and Robert agree that their marriage is not working. If they divorce, however, Kate will have no health insurance. So instead, they legally separate so that Kate remains on Robert's health plan.

After a few years, Kate undergoes extensive surgery and her back problems are gone. She also obtains a job in which her employer's health insurer is willing to provide her with coverage. Because Kate no longer needs Robert's insurance, Kate and Robert now convert their legal separation into a divorce.

FOREIGN DIVORCE

A divorce obtained in a different state or country from where one spouse resides at the time of the divorce is called a foreign divorce. As a general rule, foreign divorces are recognized as valid in all states if the other spouse has become a resident of the state or country granting the divorce and if both parties consented to the jurisdiction of the foreign court to grant the divorce. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the non-consenting spouse later acts as if the foreign divorce was valid, for example, by remarrying.

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SIDE NOTE - UNIFORM DIVORCE RECOGNITION ACT

The Uniform Divorce Recognition Act has been passed by a few states. This uniform law provides that if both members of a married couple are residing within one state and the couple obtains a divorce from another state, the state in which the couple resides will not recognize or enforce the foreign divorce. This means that if a married couple lives in Ohio and gets divorced in South Dakota, Ohio will not consider the divorce valid. Having an invalid divorce can have many effects, including changing the filing status on state and federal income tax returns, altering the disposition of property on death, and in rare cases, leading to prosecution for bigamy where a spouse, knowing she has an invalid divorce, remarries.
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SIDE NOTE - DOMINICAN REPUBLIC DIVORCE

Divorces granted by the Dominican Republic are called Dominican divorces. Married couples can obtain Dominican divorces without actually going to the Dominican Republic. Most states, however, do not recognize these divorces as valid unless at least one spouse was present in the Dominican Republic at the time the Dominican divorce was obtained.

The Dominican Republic is the current nation offering fast, mail-order divorces, but is by no means the only nation to do so. In past years, Mexico and Haiti were popular "quickie" divorce spots.
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DEFENSES TO DIVORCE

Under the traditional fault divorce scheme, a spouse who did not want a divorce usually defended against the divorce action by simply denying whatever the other spouse alleged. Sometimes, however, the evidence of the defendant's fault (also called marital misconduct) was overwhelming, and the defendant needed something other than just a denial. Under the laws of many states, the defendant was permitted to defeat a divorce action by proving that the plaintiff was also at fault and therefore shouldn't be granted the divorce. If both parties were deemed at fault, neither could be granted the divorce, and they were forced to remain married. (Courts sometimes got around this, however.)

Under this system, women who were financially dependent on their husbands could threaten to block a divorce by proving that a husband was at fault, unless he agreed to provide a greater share of marital property or alimony than he might otherwise be required to pay. Although it is still possible to obtain a fault divorce in most states, the fact that no-fault divorce is now also available in every state has made this type of bargaining much less common.

Other defenses to a divorce based on marital misconduct include:

COLLUSION

Collusion is the secret cooperation of two people in order to mislead or deceive a third person. Before no-fault divorces, many couples wanted to divorce, but neither spouse had a legal basis (ground) for the divorce. They would therefore pretend that one of them was committing adultery or was otherwise at fault in order to manufacture a ground for divorce. This was collusion because they were cooperating in order to mislead the judge. If, before the divorce, the defendant decided he no longer wanted a divorce, he could raise the collusion as a defense to the divorce.

CONDONATION

Condonation is someone's approval of another's activities. For example, a wife who does not object to her husband's adultery may be said to condone it. In a fault divorce, condonation may constitute a defense to divorce. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she condoned his behavior.

CONNIVANCE

Connivance is the setting up of a situation so that the other person commits a wrongdoing. For example, a wife who invites her husband's co- respondent to the house and then leaves for the weekend may be said to have connived his adultery. In a fault divorce, connivance may constitute a defense to divorce. If the wife sues her husband for divorce, claiming he has committed adultery, the husband may argue as a defense that she connived - that is, set up - his actions.

PROVOCATION

Provocation is the inciting of another to do a certain act. In a fault divorce, provocation may constitute a defense. For example, if the spouse suing for divorce claims that the other spouse abandoned her, her spouse might defend the suit on the ground that she provoked the abandonment.

To obtain a divorce, a plaintiff must meet several requirements - grounds for a divorce, legal adulthood and residency in the state.

RESIDENCY

Residency means living in a particular place with the intention of remaining there. States require a spouse to be a resident of a state before filing for a divorce there. States do not require someone who wants to file for a divorce to prove that he is a resident; instead, the state just looks to the fact that he is residing there as indication that he plans to stay indefinitely.

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SIDE NOTE - TRAVEL: EFFECT ON RESIDENCY

Travel for any length of time does not affect residency for the purpose of obtaining a divorce. Thus, if Henry moved to New Hampshire from Florida, lived there for several years, and then took a leisurely trip around the world, he could still return to New Hampshire and file for divorce based on his prior established residency.
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Virtually all states require that someone live in the state for a certain period of time - often six months - before filing for divorce. This is called a durational residency requirement. No state has a residency requirement for getting married.

When a couple divorces, they may agree on some or all of the issues relating to the division of property, custody and visitation of the children, alimony and child support. If the agreement is put in writing, signed by the parties and accepted by the court, it is called a divorce agreement, marital settlement agreement, marital termination agreement or settlement agreement. The agreement becomes part of the divorce decree and does away with the necessity of having a trial on the issues covered by the agreement.

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SIDE NOTE - INTEGRATED PROPERTY SETTLEMENT AGREEMENT

Upon divorce, couples commonly enter into a divorce agreement which divides marital property and may set alimony. The agreement is called integrated if the property settlement and alimony payments are combined into either one lump sum payment or periodic payments. Integrated agreements are often used when the marital property consists of substantial intangible assets (for example, future royalties, stock options, future pension plans) or when one party is buying the other's interest in a valuable tangible asset (for example, a home or business). In addition, if a spouse is entitled to little or no alimony, but is not financially independent, periodic payments may help that spouse gain financial independence.

Most integrated property settlement agreements cannot later be changed at the request of one of the parties unless he can show the agreement was entered into under fraud or duress. This is because the alimony and property division are so intertwined that a later modification would create a substantial risk of unfairness to one of the parties.
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RECONCILIATION

Reconciliation is the getting back together of a couple who have continuously lived apart for a period of time. Reconciliation requires more than occasional sex or living together; it requires that the couple actually intend to resume their marriage. If a judge determines that parties to a divorce have reconciled, a pending divorce complaint may be denied. If, however, an interlocutory judgment of divorce has been issued prior to the reconciliation, the judgment's terms concerning the division of property will remain in effect unless the spouses seek to have it set aside.

Many states require a waiting period between the interlocutory and final judgments to give the parties an opportunity to reconcile. This is called a cooling-off period and can be three months to a year, depending on state law. Once the divorce becomes final, however, the marriage cannot be reconciled (that is, the couple must remarry).

CONCILIATION SERVICE

In a few states, persons contemplating divorce can get help from court- provided services that attempt to bring the parties back together (conciliation) or help them work out some disputed issues (mediation). Some states also offer conciliation services and mediation to divorcing spouses to help resolve disputes over child support, alimony, custody, visitation and division of property through negotiation rather than adversarial court proceedings.

MEDIATION

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons (often parties to a lawsuit or a threatened lawsuit) to help them settle the dispute. The mediator, however, does not have the power to impose a solution on the parties.

Mediation is often used to help a divorcing or divorced couple work out their differences concerning alimony, child support, custody, visitation and division of property. Some lawyers and mental health professionals employ mediation as part of their practice.

FORMER NAME

A woman's surname given to her at birth is her maiden name. She may have another former name from a previous marriage or other name change. A divorcing woman who took her husband's name at marriage has the option of returning to her maiden name, a former married name (if she has been married more than once), keeping her married name or choosing something completely new. A woman's surname is not automatically changed by marriage; the change becomes effective only if the woman starts using her husband's surname.

HEAD OF HOUSEHOLD

Head of household is the federal income tax status of a single person who contributes more than one half toward the support of a non-spouse relative. The relative must be a parent (including a stepparent or grandparent), child (including stepchild or grandchild) or sibling (including half-sibling). The head of household tax rate is higher than that for married persons filing jointly, but lower than that for single persons.

Head of household tax status is important for single parents, and divorcing parents often argue over which one is entitled to the head of household filing status. Because the one who claims head of household must contribute more than half of the support, both parents cannot claim it.

INSURANCE

Divorce can affect a couple's life and health insurance. If a spouse is named as a beneficiary in a life insurance policy, some states' laws change the beneficiary automatically if the couple divorces and the holder of the policy remarries. Thus, even if the policyholder forgets to change the beneficiary, the new spouse, not the ex-spouse, will get the proceeds. In a few states, if there is no remarriage, the ex-spouse may still be automatically taken off the policy and the proceeds given to the insured's children. Some judges require an ex-spouse who pays alimony (or child support) to make the recipients of the support beneficiaries of a life insurance policy.

Divorce can also affect health insurance coverage. Some states have automatic conversion laws requiring the financially independent spouse to continue to cover the financially dependent spouse after divorce until the dependent spouse becomes financially independent. See, for example, Connecticut General Statutes Annotated 38-262(d); Florida Statutes Annotated 627.6675; Iowa Code Annotated 509(B)(3); Massachusetts General Laws Annotated 32A-11(A) and 175-110(I); Minnesota Statutes Annotated 62A and 21(A)(2A), 2(B); Annotated Missouri Statutes 376-428; New Jersey Statutes Annotated 17:48-6 and 48A; New Mexico Statutes Annotated 59A-47-34; Tennessee Code Annotated 56-7-1501.

Also, the federal Consolidated Omnibus Budget Reconciliation Act -COBRA- makes an ex-spouse eligible to receive for the three years following the divorce, any group rate health insurance provided by her ex- husband's employer. (26 U.S.C. Section 4980B(f).) This law also applies to children of the parties and they may take these continuation and conversion options until they are no longer dependents.

In addition, all states require one or the other parent to provide health insurance for the minor children after divorce. Some states also require that the parent paying child support maintain a life insurance policy naming the children as beneficiaries in the event the parent dies before the children reach the age of majority.

PETS

Pets are a part of many families. In some divorces, spouses argue over who should keep the dogs, cats, rabbits and other pets. Some disagreements are so heated that the parties to the divorce cannot make the decision themselves. A growing number of judges (although still very few) are asked to make custody and visitation orders concerning the pets.

Divorce can also affect pets when a family breaks up and is forced to move to smaller living quarters. In this situation, there is often insufficient space for the pets, and they must be sold or given away.

THE UNIFORM MARRIAGE AND DIVORCE ACT

The Uniform Marriage and Divorce Act (UMDA) is an extensive uniform law which provides standards governing marriage, divorce, property distribution, alimony, child support and custody. It has been adopted by eight states - Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana and Washington.

The major provisions do the following:

  • Eliminate fault divorces. The only ground permitted is irretrievable breakdown, defined as either living apart for 180 days, or a serious marital discord adversely affecting the attitude of one or both spouses toward the marriage.
  • Eliminate traditional defenses to divorce.
  • Provide for equitable distribution of property in non-community property states; factors to include in making an equitable distribution are:
    • length of marriage and any prior marriages
    • agreement before marriage
    • age, health, station, occupation, income, vocational skills, employability, property and debts of each spouse
    • needs of the parties, including any future opportunities to acquire assets
    • who has custody
    • any economic misconduct, and
    • whether the property distribution is in lieu of, or in addition to, alimony.
  • Provide for distributing community property; factors include:
    • non-monetary contributions to the marriage
    • value of property distributed to each spouse
    • length of marriage, and
    • any other economic circumstances including the need to award the family home to the custodial parent.
  • Award alimony only if the supported spouse lacks property to provide for reasonable needs, and is unable to support herself through employment or is a custodial parent unable to seek employment outside the home.
  • Base child support on:
    • resources of the child and the custodial parent
    • standard of living the child enjoyed before the divorce
    • physical, emotional and educational needs of the child, and
    • resources and needs of the noncustodial parent.
  • Base custody on:
    • parents' and child's preference
    • relationship of child with parents, siblings, and others affecting child, and
    • mental and physical health of all involved.

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