Divorce And Separation

Divorce And Separation

DEMOGRAPHICS

IMPLICATIONS OF DIVORCE AND SEPARATION FOR FAMILIES

BIBLIOGRAPHY

Divorce and separation are legal actions that affect the civil marriage contract. In the United States, marriage, separation, annulment, and divorce are regulated individually by the states, although some federal benefits are available only to those who are legally married. In most cases, the person filing for the divorce or separation must be a resident for at least ninety days in the jurisdiction where the legal action is filed. Divorce is the formal dissolution of a marriage. Separation formalizes an agreement between a married couple who live apart. Some states and countries require some period of legal separation before divorce. For divorce and separation, the legal agreement may decide child custody, support, and visitation, division of assets and marital property, debt, marital home possession, and in cases of abuse, a protection order.

Separation does not end the marriage. People may choose separation over divorce for a variety of reasons, including religious or financial grounds; for the sake of the children; to retain health care, military, or tax benefits; or to live apart to assess if divorce is the best option. A separation agreement can be converted to a divorce decree.

Marriage annulment is a legal procedure declaring that the marriage never existed. The grounds for an annulment vary by state, but may apply to marriages involving underage partners (with the age varying by state), blood relatives with relationships closer than first cousins, or the absence of mental or physical capacity to consent to marriage. Other grounds for marriage annulment include intoxication, duress, refusal of intercourse, impotence, and bigamy. Most annulled marriages are brief. In the case of longer marriages the court divides the property of the parties and can determine rights and obligations related to the marital children. Children from an annulled marriage are legitimate. The history of marriage annulment dates back to Henry VIII (1491–1547), who had four of his six marriages annulled.

In the Catholic Church a member who wants to remarry after a divorce or to marry a divorced non-Catholic must have the prior marriage nullified. This is a religious rather than a legal process.

In the United States the trend since the 1960s has been toward no-fault divorces with joint legal custody of children. This contrasts with the former, adversarial process in which one person must prove a “fault” such as adultery, cruelty, desertion, habitual drunkenness, or insanity. Under no-fault laws the court must find irreconcilable differences or that the couple lived apart for a designated period of time. Critics blame no-fault divorce for the increasing divorce rate. In 1997, Louisiana was the first state to adopt “covenant marriages,” by which couples must enter into premarital counseling, and in the event that they eventually separate, undergo mandatory marital counseling, then wait two years after separation or provide proof of fault before divorcing.

In Canada the federal government sets divorce law that applies equally across provinces. No-fault divorce was adopted in 1986, allowing divorce for couples who have been separated for one year. In England marriage can be terminated by a “dissolution of marriage” or a “nullification,” the equivalent of an annulment in the United States.

In the United States only Massachusetts currently allows same-sex marriages. Canada has also recognized civil marriage between same sex partners. Many same-sex couples from other states travel to marry in Massachusetts, and the legal systems in their home states must determine how to deal with those relationships if the couples want to dissolve them, and what rights and responsibilities couples have upon dissolution, including custody and visitation rights for children born or adopted during the relationships. Similar challenges face states that grant to same-sex couples domestic partnerships, which outline the legal rights and responsibilities of those relationships but do not recognize them as marriages. In 1986 Congress adopted the Defense of Marriage Act (DOMA), which stated that no state has to recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state. In addition, the federal government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.

In the United States the divorce laws of the state the couple resides in, not the state they were married in, govern the dissolution; this is similar in many other countries. International divorces, in which the couple married in one country and then moved to another, face special difficulties. In addition, some countries that have religiously based governments, including Islamic and Jewish states, require religious divorces; others, including Japan and Taiwan, require only a registry office divorce, and only one spouse needs to file the paper. There are also “quickie” divorces in places such as the Dominican Republic, where there is little or no residence requirement.

DEMOGRAPHICS

Divorce rates have been rising in the United States, South Korea, and the nations of the European Union; Japan has the lowest rate. Divorce rates rose slowly from the 1860s to about 1919. There were more dramatic increases after both world wars, followed by a decrease and then a relatively stable divorce rate from 1950 to the mid-1960s. After a dramatic increase between the late 1960s through the mid-1970s, partially due to the introduction of no-fault divorces and economic prosperity, divorce rates in the United States declined, and this decline continues today. The divorce rate was 4.7 per thousand married women fifteen and older from 1990 to 1993, decreasing to 4.0 in 2001. In 2005 in the United States there were 7.5 new marriages for every 3.6 divorces per 1,000 people (Baca Zinn and Eitzen 2005).

In the United States, between 40 and 52 percent of all first marriages end in divorce, whereas in Europe the rate is one in three or four. Approximately 17 percent of married couples are separated at some time. In any given year, between 2 and 4 percent of marriages are granted legal separations. One in five marriages ends in divorce or separation in the first five years, one in three in the first ten years, and more than two-fifths within fifteen years. In the United States divorce rate is higher for remarried white women, whereas for African American women the rate is the same for once-wed or remarried women. In general, the divorce rate is lowest for white and Latino couples, and more than twice as high for African Americans.

A curvilinear relationship exists between income and divorce. Women in very low- and very high-income marriages have higher rates of divorce. Wives with higher education and husbands with higher income are less likely to divorce. Black and white couples who attend religious services together are less likely to divorce (Park 2004).

Age at first marriage is a strong predictor of marital stability. Almost 60 percent of those who marry at or before the age of eighteen dissolve their marriages within fifteen years. A factor accounting for both younger marriages and higher divorce rates is premarital pregnancy and birth. The presence of children also affects the likelihood of divorce. Childless couples divorce at a higher rate than those with children. And there is a curvilinear relationship between number of children and divorce: Divorce rates decrease as families have more children, up to four; those with more than four children are more likely to divorce than those without children. Families with children under three years old are less likely to divorce than those with children over fifteen.

Divorce is more common among those who lived together before marriage. About 40 percent of couples who lived together premaritally divorced after ten years of marriage, compared to 31 percent of those who did not live together.

Religion influences divorce. Twenty-four percent of all adults will experience a divorce over the course of their lifetime. The highest rate is for Jews (30%). Baptists have the highest rate among Christians (29%)—even those who identify themselves as “born again” have a higher than average divorce rate (27%). Protestants and Mormons have a rate of 25 percent, whereas Catholics have a rate of 21 percent (Baca Zinn and Eitzen 2005).

IMPLICATIONS OF DIVORCE AND SEPARATION FOR FAMILIES

Ex-husbands generally experience an increased standard of living after divorce. They are most often the primary wage earners in the family, and after divorce more of their income stays with them. They have more money and leisure time available to them. About 85 percent of men do not seek primary physical custody of their children, so they have greater freedom for dating, furthering their education, travel, hobbies, and sexual relationships. After divorce, males often have difficulty maintaining a routine for eating, sleeping, shopping, cooking, and cleaning. They see their children relatively rarely, and thus experience isolation. The difficulty of adjusting to divorce results in higher rates of illness and death for men.

Typically, women experience a dramatic decline in their standard of living after a divorce—to about half what their living standard had been before divorce, or about half that of divorced men. To improve their situations, divorced women often rely on several sources of wealth, including alimony, which is awarded to 15 percent of divorced women. Equitable division of marital property assumes that men and women are equal at the time of divorce, but awarding primary residences to women assumes that they are able to pay the mortgages, an assumption that disadvantages women who work in the home or those who make low wages. Two-thirds of divorced mothers are awarded child support, but in at least 60 percent of the cases fathers are late with payments or do not pay at all. Women may also experience isolation and over-extension due to their child care, household, and wage-earning responsibilities.

Women also may benefit from divorce. Like men, they experience an increase in freedom, albeit freedom mediated by child and household responsibilities. Domestic violence lessens, and as the divorce rate rises there is a decrease in both suicide and murder rates of women. However, women in separated couples are the group at the greatest risk of assault and murder by intimates.

At various times in history conservative social critics have argued that divorce contributes to a negative decline in the American family, and that the lack of a male role model for children of divorce has a negative effect, and can lead to crime and delinquency. But research indicates that children are resilient in coping with a divorce, and that three out of four kids become healthy and competent adults. The large majority of children in divorced families do not experience severe or long-term problems. For those children in abusive families, the quality of family life may increase.

Girls seem to fare better than boys (Seltzer 1994). Antisocial behavior on the part of children in divorced families is related to lack of parental control rather than the divorce itself. Family size, too, influences children’s well-being after divorce—the larger the family, the greater the stress on single parents, which may negatively affect children. Race also affects children’s experience of divorce. African American children are more likely to be economically disadvantaged in society and may experience more detrimental effects of divorce.

Parental contact also affects children. Parents with higher socioeconomic status are more likely to have joint legal custody of their children, and so those fathers are more likely to spend time with their children. Contact with both parents helps children adjust favorably to divorce. Children fare better when parents live in the same geographic region, which facilitates visitation.

The economic status of the family importantly predicts the problems families and children face. Children in fatherless families are more likely to drop out of school, use drugs, and engage in delinquent behavior, but the underlying cause is not divorce, but poverty (Kimmel 2004).

Economic security needs to compensate for the drop in the standard of living for divorced families. This could include policies such as a living wage for all workers to counter the low wages that divorced women find themselves confined in. There should also be a safety net providing job training and societal assistance to women and children after a divorce. This assistance could take the form of job training, public employment, quality day care assistance, adequate diet support and medical care. All would reduce the stress on children and families experiencing divorce.

SEE ALSO Children; Family Functioning; Family Structure; Marriage; Marriage, Same-Sex; Mental Illness; Poverty; Religion; Stress

BIBLIOGRAPHY

Ahrons, Constance. 2007. Introduction to the Special Issue on Divorce and Its Aftermath. Family Process 46 (1): 3–8.

Amato, Paul, and Danielle D. DeBoer. 2001. The Transmission of Marital Instability across Generations. Journal of Marriage and the Family 63: 1038–1051.

Baca Zinn, Maxine, and D. Stanley Eitzen. 2005. Diversity in Families. 7th ed. Boston: Allyn and Bacon.

Bachman, R., and L. E. Saltzman. 1995. Violence Against Women: Estimates from the Redesigned National Crime Victimization Survey. U.S. Dept. of Justice, Bureau of Justice Statistics. http://www.ojp.usdoj.gov/bjs/pub/ascii/femvied.txt

Coltrane, Scott, and Michele Adams. 2003. The Social Construction of the Divorce “Problem”: Morality, Child Victims, and the Politics of Gender. Family Relations 52 (4): 363.

Coontz, Stephanie. 2007. The Origins of Modern Divorce. Quarterly Journal of Economics 46 (1): 7–17.

Georgetown Journal of Gender and the Law. 2001. Annual Review of Gender and Sexuality Law. Vol. 2 Num. 2.

Kimmel, Michael S. 2004. The Gendered Society. 2nd ed. New York: Oxford University Press.

Meckler, Laura. 2003. Want a Stable Marriage? Be Rich, Religious, over 20. Associated Press, July 25.

Morley, Jeremy. 2004. International Family Law. New York Law Journal, November 24.

Parke, Mary. 2003. Are Married Parents Really Better for Children? Couples and Marriage Research and Policy Brief. The Center for Law and Social Policy. http://www.clasp.org/publications/marriage_brief3_annotated.pdf.

Seltzer, Judith A. 1994. Consequences of Marital Dissolution for Children. Annual Review of Sociology 20: 235–266.

Stevenson, Betsey, and Justin Wolfers. 2006. Bargaining in the Shadow of the Law: Divorce Laws and Family Distress. Quarterly Journal of Economics 121(1): 267–288.

Pat Murphy