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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, chil support, and distribution o property.
Divorce laws vary considerably around the world. It is banned in Malta and in the Philippnes, but an annulment is permitted.
In some jurisdictions, 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. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. In some other countries, like Portugal, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity, where also can be served an Electronic Divorce since March 2008.
The subject of divorce as a social phenomenon is an important research topic in sociology. In many developed countries, divorce rates increased markedly during the twentieth century. Among the nations in which divorce has become commonplace are the United States, Cananda, parts of the European Union, and Japan which retains a markedly lower divorce rate, though it has increased in recent years.
Types of Divorce
The approach to divorce varies by jurisdiction.
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 to be shown. Common reasons for no-fault divorce include: incompatibility, irreconcilable differences, and irremediable breakdown of the marriage. Forty-nine of the United States have adopted unilateral no-fault divorce laws. 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). In the United States, only the state of New York still requires fault for a divorce. All other states have adopted no-fault divorce statutes.
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.
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, available in some jurisdictions, 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 mortage)
- 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 collabortive 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 collabrative process is confidential proceedings. Furthermore, there are no set enforceable timelines for completion of a divorce using collabrative 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.
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