12.5: Divorce

Divorce and Its Legal Ramifications

Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage between the parties.

Learning Objectives

Describe fault-based and no-fault divorce systems

Key Points

• Though divorce laws vary among jurisdictions, there are two basic approaches to divorce: fault based and no-fault based.
• Under a no-fault divorce system, divorce requires no allegation or proof of fault of either party; spouses can divorce simply because they no longer wish to remain married.
• Fault-based divorce systems require proof by one party that the other party has committed an act incompatible to the marriage.
• A summary divorce is used when spouses meet certain eligibility requirements or can agree on key issues beforehand. When a summary divorce is issued, the divorce does not go to trial.
• In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences.
• For same-sex couples, divorce law is in its infancy and is less than clear on how such unions may be legally dissolved.
• For same-sex couples, divorce law is in its infancy and is less than clear on how such unions may be legally dissolved.

Key Terms

• Divorce Mediation Session: When a mediator facilitates the discussion between the two parties 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.
• Uncontested Divorces: When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed.
• Summary Divorce: When spouses meet certain eligibility requirements or can agree on key issues beforehand to avoid having a trial to dissolve a marriage.

Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage, and dissolving the bonds of matrimony between the parties. Divorce laws vary considerably around the world, but in most countries it requires the sanction of a court or other authority in a legal process. The legal process of divorce may also involve issues of alimony, child custody, child support, distribution of property, and division of debt. Between 1971 and 2011, several countries legalized divorce, the last one being Malta in 2011.

Types of Divorce

Though divorce laws vary among jurisdictions, there are two basic approaches to divorce: fault based, and no-fault based. Under a no-fault divorce system, divorce requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require “irretrievable breakdown,” the mere assertion that the marriage has broken down will satisfy the judicial officer. By contrast, fault-based divorce systems require proof by one party that the other party has committed an act incompatible to the marriage. This is termed “grounds” for divorce (popularly called “fault”) and is the only way to terminate a marriage under a fault-based system.

A summary divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand. Key factors include a short marriage, no children, and minimal property. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. These are termed uncontested divorces. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Finally, divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties 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.

Divorce of Same-Sex Married Couples in the United States

Although marriage was previously defined as a legal union between one man and one woman in the United States, over the past decades several states have begun to consider adopting, or have adopted, legislation which legalizes same-sex marriage. Once legally married, same-sex couples are entitled to the same degree of financial security as their hetero-sexual counterparts, including, but not limited to, the right to receive their spouse’s death benefits, health insurance, life insurance and other protections. For same-sex couples, divorce law is in its infancy and is less than clear on how such unions may be legally dissolved. For example, if a same-sex couple is married in a state that recognizes gay marriage but returns to reside in a state that does not, they might find themselves in a situation where their own state, in failing to recognize their union, will also fail to enable them to divorce.

Divorce Rates in Sweeden: This graph depicts divorce rates in Sweden from 2000 to 2010.

Child Custody Laws

Child custody laws describe the legal and practical relationship between a parent and his or her child.

Learning Objectives

Contrast different types of custody

Key Points

• Physical custody involves the day-to-day care of a child and establishes where a child will live.
• If a child lives with both parents, each parent shares “joint physical custody” and each parent is said to be a “custodial parent”.
• Shared custody is an arrangement in which the child lives for an extended period of time with one parent and then for a similar amount of time with the other parent.
• Alternating custody is an arrangement in which the child lives for an extended period of time with one parent and then for a similar amount of time with the other parent.
• A custodial parent is a parent who is given physical and/or legal custody of a child by court order.
• A non-custodial parent is a parent who does not have physical and/or legal custody of his/her child by court order.
• In Troxel v. Granville (2000), the U.S. Supreme Court affirmed that a biological parent holds a fundamental right in choosing how to raise one’s children as they see fit.

Key Terms

• Parenting Schedule: A schedule of which divorced parent is responsible for the child at any given point in time.
• Troxel v. Granville: A U.S. Supreme Court case (2000) that affirmed that a biological parent holds a fundamental right in choosing how to raise one’s children as they see fit.

Child custody and guardianship are legal terms, which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent’s duty to care for the child. Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as “residence” and “contact” have superseded the concepts of “custody” and “access. ” Instead of a parent having “custody” of or “access” to a child, a child is now said to “reside” or have “contact” with a parent. For a discussion of the new international nomenclature, see “parental responsibility. ”

Residence and contact issues typically arise in proceedings involving divorce, annulment, and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard. Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. While most parents cooperate when it comes to sharing their children and resort to mediation to settle a dispute, not all do. For those that engage in litigation, there seem to be few limits.

Types of Custody

Under family law, there are different types of custody. Alternating custody is an arrangement whereby the child lives for an extended period of time with one parent, and then for a similar amount of time with the other parent. While the child is with the parent, that parent retains sole authority over the child. Further, shared custody is an arrangement whereby the child lives for an extended period of time with one parent, and then for a similar amount of time with the other parent. Physical custody involves the day-to-day care of a child, and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her. If a child lives with both parents, each parent shares “joint physical custody” and each parent is said to be a “custodial parent. ” Thus, in joint physical custody, neither parent is said to be a “non-custodial parent. ”

Custodial and Non-Custodial Parents

A custodial parent is a parent who is given physical and/or legal custody of a child by court order. A child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. A non-custodial parent is a parent who does not have physical and/or legal custody of his/her child by court order.

Child Custody Laws in the United States

In Troxel v. Granville (2000), the U.S. Supreme Court affirmed that a biological parent holds a fundamental right in choosing how to raise one’s children as they see fit. Later in the case of O’Donnell-Lamont (2004), the court affirmed an Oregon statute requiring a presumption that the parent acts in the child’s best interests, to be met prior to applying the best interests of the child standard, placing both parties on equal footing.

A New Terminology?

In some places, courts and legal professionals are beginning to use the term “parenting schedule” instead of “custody and visitation. ” The new terminology eliminates the distinction between custodial and noncustodial parents and also attempts to build upon the best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers may demand less frequent shifts yet longer blocks of time with each parent.

Child Custody: Residence and contact issues typically arise in proceedings involving divorce, annulment and other legal proceedings where children may be involved.In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child.

Statistical Trends in Divorce

Divorce statistics vary across the world, but on average, first marriages that end in divorce last about eight years.

Learning Objectives

Name three important statistical trends in divorce in the U.S.

Key Points

• Success in marriage has been associated with higher education and higher age.
• The growth of divorce rates in the United States have been dropping during the last few decades.
• One study estimated that legal reforms accounted for about 20% of the increase in divorce rates in Europe between 1960 and 2002.

Key Terms

• Divorce Statistics: Quantitative measures of marriage and marital dissolution.

Divorce statistics vary across the world. On average, first marriages that end in divorce last about eight years. Of the first marriages for women from 1955 to 1959, about 79% marked their 15^th anniversary, compared with only 57% for women who married for the first time from 1985 to 1989. The median time between divorce and a second marriage was about three and a half years.

Successful Marriages

Success in marriage has been associated with higher education and higher age. 81% of college graduates, over 26 years of age, who wed in the 1980’s, were still married 20 years later. 65% of college graduates under 26, who married in the 1980’s, were still married 20 years later. 49% of high school graduates under 26 years old, who married in the 1980’s, were still married 20 years later. Population studies have found that in 2004 and 2008, liberal -voting states have lower rates of divorce than conservative-voting states, possibly because people in liberal states tend to wait longer before getting married. In 2009, 2.9% of adults 35–39 without a college degree were divorced, compared with 1.6% with a college education.

Divorce in the United States

Divorce rates in the United States have been dropping during the last few decades. Data indicates that marriages have lasted longer in the 21^st century than they did in the 1990’s. The National Center for Health Statistics reports that from 1975 to 1988, 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. It is estimated that upwards of 95% of divorces in the U.S. are “uncontested,” because the two parties are able to come to an agreement without a hearing about the property, children, and support issues. A 2011 study found a 1% increase in the unemployment rate correlated with a 1% decrease in the divorce rate, presumably because more people were financially challenged to afford the legal proceedings.

Divorce around the World

One study estimated that legal reforms accounted for about 20% of the increase in divorce rates in Europe between 1960 and 2002. In Australia, nearly every third marriage ends in divorce. After reaching a peak divorce rate of 2.7 per 1,000 residents in 2001, the Australian rate declined to 2.3 per 1,000 in 2007. In Japan, divorces were on a generally upward trend from the 1960’s until 2002 when they hit a peak of 290,000. Since then, both the number of divorces and the divorce rate have declined for six years straight.

Marital Status in the United States Chart: This image depicts marital status in the U.S.

Factors Associated with Divorce

Factors that may lead marriages to end in divorce are infidelity, adultery domestic violence, midlife crises, inexperience, and addictions.

Learning Objectives

Discuss five factors that may lead marriages to end in divorce

Key Points

• Adultery is voluntary sexual intercourse between a married person and someone other than the lawful spouse.
• Infidelity most commonly refers to a breach of the expectation of sexual exclusivity that is expressed or implied in intimate relationships in many cultures.
• Domestic violence is defined as a pattern of abusive behaviors by one partner against another in an intimate relationship such as marriage.
• A midlife crisis is a term that was coined by Elliott Jaques in 1965 that suggests it is a time when adults come to realize their own mortality and how much time is left in their lives, prompting a sudden change in behavior.
• Alcoholism is a broad term for problems with alcohol and is generally used to mean compulsive and uncontrolled consumption of alcoholic beverages
• Problem gambling is an urge to continuously gamble despite harmful negative consequences or a desire to stop.

Key Terms

• domestic violence: Violence against another in an intimate relationship such as marriage or domestic partnership.
• Midlife Crisis: A term coined by Elliott Jaques in 1965 that suggests it is a time when adults come to realize their own mortality and how much time is left in their lives, prompting a sudden change in behavior
• infidelity: Unfaithfulness in marriage or other moral obligation.

Numerous studies have tried to determine why 50 percent of marriages in the United States end in divorce within the first 25 years. While not conclusive, the predominate factors that lead marriages to end in divorce are infidelity, adultery domestic violence, midlife crises, inexperience, and addictions such as alcoholism and gambling.

Causes of Divorce

Adultery

Adultery is voluntary sexual intercourse between a married person and someone other than the lawful spouse. Historically, adultery has been considered a serious offense in many cultures. Even in jurisdictions where adultery is not a criminal offense itself, it may still have legal consequences, particularly in divorce cases.

Infidelity

More narrowly, infidelity most commonly refers to a breach of the expectation of sexual exclusivity that is expressed or implied in intimate relationships in many cultures.

Domestic Violence

Domestic violence is defined as a pattern of abusive behaviors by one partner against another in an intimate relationship such as marriage or domestic partnership.

Midlife Crisis

A midlife crisis is a term that was coined by Elliott Jaques in 1965 that suggests it is a time when adults come to realize their own mortality and how much time is left in their lives. A midlife crisis is experienced by many people during the midlife transition when they realize that life may be more than halfway over, prompting a sudden change in behavior.

Marrying Too Young

The age at which a person gets married is also believed to influence the likelihood of divorce. Delaying marriage until one is older or more experienced may provide more opportunity to choose a more compatible partner

Addictions

Alcoholism is a broad term for problems with alcohol, and is generally used to mean compulsive and uncontrolled consumption of alcoholic beverages, usually to the detriment of the drinker’s health, personal relationships, and social standing. Problem gambling is an urge to continuously gamble despite harmful negative consequences or a desire to stop. Problem gambling often is defined by whether harm is experienced by the gambler or others, rather than by the gambler’s behavior.

Marriage and Divorce Rates in the U.S. 1990-2007: This graph illustrates marriage and divorce rates in the U.S. 1990-2007. Source: Statistical Abstract, 2009.

Children of Divorce and Impact of Divorce

Sociologists and psychologists have found that the effects of divorce heavily depend on the child’s age at the time the divorce occurs.

Learning Objectives

Compare and contrast the effects of divorce on infants and adolescents

Key Points

• Although infants may not understand the exact conflict, they do react to the difference in their parents’ mood and energy change.
• Pre-school aged children often mistake the divorce as their own fault.
• School-aged children have more of a difficult time adjusting to the parental divorce than younger or older children.
• Teens experience some of the same feelings as school-aged children. They feel anger, fear, depression, loneliness, and guilt.
• Sociologists believe that the rise in the number of older Americans who are not married is a result of factors such as longevity and economics.
• Elder women are becoming more and more financially independent which allows them to feel more secure with being alone.

Key Terms

• longevity: The quality of being long-lasting, especially of life.

Sociologists and psychologists have conducted research that shows the effects of divorce heavily depend on the child’s age at the time the divorce occurs. The child’s gender, personality, the amount of conflicts with the parents, and support of family and friends all contribute to the effects of divorce on a child.

Infants and Pre-School Children

Although infants may not understand the exact conflict, they do react to the difference in their parent’s mood and energy change. Some effects an infant may have include a loss of appetite and an increase in spit up. Pre-school children range from three to five years old and may often mistake the divorce as their own fault. Some of the effects for children at this age may include baby-like behavior such as old toys, a baby blanket, or even wetting the bed. They also may become depressed, uncooperative, or angry.

School-Aged Children and Adolescents

Children at this age have more of a difficult time adjusting to the parental divorce than younger or older children. At this age, children are able to understand the pain they feel due to the separation of their parents, but they are too young to control how they respond to the pain. Often children experience feelings of anger, grief, and embarrassment. In order to deal with the situation and cope, it is important that children become involved in activities with other kids. It is very common for children this age to hope that parents will eventually get back together.

Teens experience some of the same feelings as school-aged children. They feel anger, fear, depression, loneliness, and guilt. Some teens feel as though they must take on new responsibilities such as new chores and taking care of siblings. Teens may also doubt his or her ability to get married or stay married.

Children of divorced parents (those entirely from unhappy families) are reported to have a higher chance of behavioral problems than those of non-divorced parents (a mix of happy and unhappy families). Studies have also reported the former to be more likely to suffer abuse than children in intact families, and to have a greater chance of living in poverty. A 2002 article in Clinical Child and Family Psychology Review discusses a variety of health consequences for children of the unhappy couples that do divorce. Constance Ahron, who has published books suggesting there may be positive effects for children, interviewed ninety-eight divorced families’ children for We’re Still Family: What Grown Children Have to Say About Their Parents’ Divorce. Data from this study, in which she describes the binuclear family, is available at the Harvard Library and online.

Although divorce may be beneficial in some instances, high-conflict divorce (especially during transition periods) is harmful to children. Children who are shuffled back and forth between households, and those who hear their parents bickering and fighting, are likely to suffer the most. The best practice to avoid problems for children is to spend more or equal time with them while minimizing the amount of transitions for the children.

Divorced and Unmarried Elderly

Sociologists believe that the rise in the number of older Americans who are not married is a result of factors such as longevity and economics. Women, especially, are becoming more and more financially independent which allows them to feel more secure with being alone. In previous generations, being divorced or single was seen differently than it is now. This has resulted in less pressure for baby boomers to marry or stay married. Demographers estimate that baby boomers who remain unmarried will face more financial struggles than those who are married.

The Absent Father and Serial Fatherhood

Involved fathers contribute to their children’s development.

Learning Objectives

Contrast the role of fathers in different cultures

Key Points

• According to the anthropologist Maurice Godelier, the parental role assumed by human males is a critical difference between human society and that of humans’ closest biological relatives—chimpanzees and bonobos—who appear to be unaware of their “father” connection.
• Stepfathers are males married to biological mothers of children whom they did not create.
• The father complex in psychology is a complex pertaining to a group of unconscious associations, or strong unconscious impulses, which specifically pertain to the image or archetype of the father. These impulses may be either positive or negative.

Key Terms

• Father Complex: A complex pertaining to a group of unconscious associations, or strong unconscious impulses, which specifically pertain to the image or archetype of the father.
• Maurice Godelier: An anthropologist who studies the differences in fatherhood between humans and apes.

A father is defined as a male parent or individual progenitor of human offspring. The adjective “paternal” refers to a father and comparatively to “maternal” for a mother. Traditionally, fathers act in a protective, supportive and responsible way toward their children. Involved fathers offer developmentally specific provisions to their sons and daughters throughout the life cycle, and are impacted themselves by doing so. According to the anthropologist Maurice Godelier, the parental role assumed by human males is a critical difference between human society and that of humans’ closest biological relatives—chimpanzees and bonobos—who appear to be unaware of their “father” connection.

In many cultures, especially traditional Western, a father is usually the husband in a married couple. Many times, fathers have a very important role in raising offspring, and the title can be given to a non-biological father that fills this role. This is common in stepfathers, or males married to biological mothers. In East Asian and Western traditional families, fathers are the heads of the families, which means that their duties include providing financial support and making critical decisions, some of which must be obeyed without question by the rest of the family members.

The Father complex in psychology is a complex pertaining to a group of unconscious associations, or strong unconscious impulses, which specifically pertain to the image or archetype of the father. These impulses may be either positive or negative. Whereas the idea of the father complex had originally evolved to deal with the heavy Victorian patriarch, by the new millennium there had developed instead a postmodern preoccupation with the loss of paternal authority, or the absence of the father. Alongside the shift from a Freudian emphasis on the role of the father to object relations theory’s stress upon the mother, psychoanalysis tended to single out the search for the father, and the negative effects of the switched-off father.

Father: Many fathers are married to the biological mothers of their children.

Contributors and Attributions

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