DIVORCE

DIVORCE (Heb. גֵּרוּשִׁין), the formal dissolution of the marriage bond.

IN THE BIBLE

Divorce was accepted as an established custom in ancient Israel (cf. Lev. 21:7, 14; 22:13; Num. 30:10; Deut. 22:19, 29). In keeping with the other cultures of the Near East, a Hebrew in early biblical times could divorce his wife at will and send her from his home. This is reflected in the use of such terms as shalle'aḥ (e.g., Deut. 21:14; 24:1, 3), garesh (e.g., Lev. 21:7; Ezek. 44:22), and hoẓiʾ (Ezra 10:3; cf. Deut. 24:2) for divorce actions. It also accounts for the survival of the view down to the Christian era that "the woman goes out (yoẓe'ah) whether she pleases or not, but the husband sends her out (moẓiʾ) only if it so pleases him" (Yev. 14:1).

The biblical, like the Mesopotamian, law codes did not set down the law of divorce in all of its details. Instead, some of its provisions were stated in brief – almost in passing – within the context of a law restricting the right of a man to remarry his divorced wife (Deut. 24:1–4). Specifically, the husband was required to write her "a bill of divorce" (sefer keritut), hand it to her, and send her away from his house (Deut. 24:1; cf. Isa. 50:1; Jer. 3:8). The content of this document is unknown, though it has been conjectured that it contained the formula, "she is not my wife nor am I her husband" (Hos. 2:4). Z. Falk is probably right in assuming that biblical divorce remained essentially an oral declaration, witnessed by the writ. This accords with the actual Sumerian practice which required the husband to pronounce the formula "you are not my wife" and to pay his wife half a mina of silver before he dismissed her from his home. Moreover, as others have shown, the term keritut itself may be derived from the ancient Sumerian ceremony requiring the husband to cut the corner of his wife's garment to symbolize the severance of the marriage bond (cf. Ruth 3:9). In any event, biblical law was concerned with the finality of the divorce action and its attendant publicity, so that there might be no questions raised later with regard to the remarriage of the divorcée. Furthermore, the requirement that a bill of divorce be issued in writing and that the wife be formally sent out of her husband's house before the marriage was dissolved, kept him from acting rashly in a moment of anger. The prohibition of remarrying the same woman, if, in the interim, she had married another (Deut. 24:4; Jer. 3:1) acted, similarly, as a moderating influence. Finally, it has been suggested that a woman was entitled to some kind of a financial settlement in the event of an arbitrary divorce action. This is not clearly stipulated in the biblical texts. Still, the existence of such a requirement appears likely from its prominence in other Near Eastern codes (cf. e.g., The Code of Hammurapi, 137–140; in: Pritchard, Texts, 172). It also helps explain a husband's willingness to defame his wife despite the scandal to his household and the possible punishment to himself (Deut. 22:13–21), because presumably he could thus rid himself of her without any penalty. The Bible records only two types of situations in which the husband was stripped of his right of divorce. The first is the one just mentioned, in which he falsely accused his wife of prenuptial intercourse. The second resulted from his having ravished a virgin who had never been engaged to another man (Deut. 22:28–29). These instances and the requirements mentioned above were the only limitations set on a man's authority to dissolve his marriage. Bet Hillel was clearly correct in its interpretation of ervat (ʿerwat) davar (Deut. 24:1) as any kind of obnoxious behavior or mannerisms, and in concluding that a man was not restricted to grounds of sexual offense in seeking to divorce his wife (Git. 90a; cf. Deut. 23:15). Still, there are no instances in the Bible when a man sent his wife away lightly. On the contrary, Abraham is depicted as resisting the expulsion of his concubine (Gen. 21:11–12), Paltiel wept when he had to give up Michal (ii Sam. 3:14–16), and Ezra encountered significant opposition when he called on the men to give up their foreign wives (Ezra 10:3ff.). The ideal of marriage was that of a permanent union (cf. Gen. 2:24) and conjugal fidelity was praised (Eccles. 9:9). Divorce did remain a necessary evil and was probably resorted to most often in the event of the barrenness of the marital union (cf. Gen. 30:1). There were instances, however, when living together must have been unbearable, and women did abandon their husbands (cf. Judg. 19:1–3; Jer. 3:20) since they had no legal recourse. The Torah did recognize, though, that a man had to discharge certain obligations toward his wife, and she, presumably, had the moral right to leave him if he refused to do so (cf. Ex. 21:10–11). The lot of the divorcée was not a pleasant one (cf. Isa. 54:6). Generally she returned to her father's home (Lev. 22:13), leaving her children with her former husband. Special arrangements were probably made for suckling infants; in later law, boys, at least, had to be returned to their father's home by the time they were six years old (Ket. 65b). The divorcée was free to remarry, but was prohibited to a priest (Lev. 21:7), indicating that some stigma was attached to her. Moral anguish speaks out of Malachi's denunciation of the frequency of divorce in Judea in the fifth century b.c.e. (2:13–16). At about the same time, the Jewish military colony in Elephantine seems to have adopted practices from their Egyptian neighbors which strengthened the woman's position in her marriage. In the three complete marriage contracts of this colony published to date (see bibl.: Cowley, 15, and Kraeling 2, 7), each spouse had full power to dissolve the marriage without establishing any grounds in "matrimonial offenses." The husband had to return his wife's dowry regardless of who had initiated the divorce proceedings, and he had to give her all of her possessions before she was required to depart from his home. These practices, however, had no basis in biblical law, though some scholars have found echoes of them during the talmudic period and later.

[David L. Lieber]

IN LATER JEWISH LAW

Talmudic literature also uses the terms shalle'aḥ, hoẓiʾ (see above). Divorce must be distinguished from a declaration of nullity of marriage in which the court declares that no marriage ever came into existence so that all rights and duties flowing therefrom – personal or pecuniary – are rendered inoperative ab initio (i.e., in the case of a marriage prohibited on account of incest according to biblical law). It must also be distinguished from an annulment of marriage, i.e., the retroactive invalidation thereof by decree of the court (see *Agunah; *Marriage). "A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house" (Deut. 24:1). This verse, stated in relation to the prohibition against a man remarrying his divorced wife after her marriage to another man (see *Marriages, Prohibited), provides the basis for the system of divorce practiced according to Jewish law, i.e., there is no divorce other than by way of the husband delivering to his wife – and not vice versa – a bill of divorcement, in halakhic language called a get pitturin or simply get (a word having the meaning of shetar, or bill: see Maim. Comm. to Mishnah, Git. 2:5). The rabbis stated that "whosoever divorces his first wife, even the altar sheds tears" (Git. 90b; cf. Mal. 2:14–16), and therefore she should not be divorced unless "he found something obnoxious about her" – an expression whose exact meaning was the subject of a dispute between Bet Hillel, Bet Shammai, and Akiva (Yev. 112b; Git. 90a). However, in terms of a rabbinical enactment known as the Ḥerem de-Rabbenu Gershom (see also *Bigamy, *Monogamy) it became prohibited for the husband to divorce his wife against her will (Remaeh 119:6; for the text of the ḥerem in relation to divorce see pdr 1:198). In Jewish law, divorce is an act of the parties to the marriage, whereby it is to be fundamentally distinguished from divorce in many other systems of law, in which the essential divorce derives from a decree of the court. In Jewish law the function of the court – i.e., in the absence of agreement between the parties – is to decide the question whether and on what terms one party may be obliged to give, or the other receive, a get. Even after the court has thus decided, the parties nevertheless remain married until such time as the husband actually delivers the get to his wife. At the same time, it is the function of the court to ensure that all the formalities required for divorce are carried out according to law.

Divorce by Mutual Consent

Jewish law shows a further distinction from many other legal systems in that the mere consent of the parties to a divorce, without any need for the court to establish responsibility for the breakup of the marriage, suffices for its dissolution, i.e., for delivery of the get. It must be given or received by them, however, of their own free will and not out of fear that they may be obliged to fulfill any obligations which they undertook in the agreement in the event of their not being divorced (Pitḥei Teshuvaheh 134, n. 9; pdr 3:322–4; 4:353f.). Hence, if either party withdraws from the agreement and satisfies the court of a genuine desire for matrimonial harmony, the other party will likewise continue to be subject to all the recognized matrimonial obligations. In this case, however, the pecuniary conditions which the parties may have stipulated in the event of either of them failing to uphold the agreement may nevertheless be valid and enforceable (Pitḥei Teshuvah loc. cit.; pdr 2:9; 6:97; pd, 20, pt. 2 (1966), 6, 12f.). It is also customary to make provision in the divorce agreement for matters such as custody of the children and their maintenance, and in principle there is no reason why such conditions should not have binding validity vis-à-vis the legal relationships between the parties themselves (pdr 4:275, 281). On the question whether and to what extent such conditions are binding in respect of the children, see *Parent and Child.

Divorce other than by Consent

In the absence of an agreement between the parties to a divorce, the court is required to decide whether or not there is a basis for obliging or – in cases where this is permitted by law – for compelling the husband to give, or the wife to receive, a get.

The decision of the court is dependent upon the existence of any of the grounds recognized as conferring a right on the wife or husband to demand a divorce.

right of the wife to demand a divorce

The wife is entitled to demand a divorce on the grounds of (a) physical defects (mumim) in her husband or (b) his conduct toward her.

Physical Defects as Grounds for Divorce.

In order to obtain a divorce on the grounds of physical defects the wife must prove that these preclude him, or her, from the possibility of cohabition, e.g., because he suffers from a contagious and dangerous disease – "afflicted with boils and leprosy" – or because the defects are likely to arouse in her feelings of revulsion when in his proximity, and the like. In the case of the unreasonable refusal of the husband to comply with the judgment obliging him to give his wife a get of his own free will in these circumstances, the court may compel his compliance (Ket. 77a and codes; pdr 3:126). The question whether judicial coercion is possible in the case of epilepsy is disputed, and the practice of the courts is to oblige – but not compel – a divorce on this ground (pdr 1:65, 73f.; 2:188, 193), save in exceptional cases, e.g., where there is the danger of the wife becoming an agunah (pdr 4:164, 171–3). The wife is also entitled to a divorce if she is childless and claims that she wishes to have a child but that her husband is incapable of begetting children (Yev. 65a/b and codes; Resp. Rosh 43:4; pdr 1:5, 8; 2:150). The wife must satisfy the court, as a precondition to divorce on this ground, that she is not seeking the divorce for pecuniary reasons or because she has "set her eyes on another" (Yev. 117a and codes; Resp. Rosh 43:2; pdr 1:364, 369). Similarly, she must prove her claim that her husband is the cause of her childlessness; the lapse of ten years from the time of her marriage without her having been made pregnant by her husband establishes a presumption that there are no longer any prospects of her bearing her husband any children (Yev. 64a and codes; pdr 1:5, 9, 10, 369). If the husband claims that the cause does not lie with him, he may demand that the matter be clarified by submission of himself and his wife to a medical examination; if his claim is established, he is exempted from paying his wife's *ketubbah (Yev. 65a; Resp. Rosh 43:12; Sh. Ar., eh 134; Beit Shemu'el 134, n. 14). A comparable cause of action arises from the wife's claim that her husband is impotent (i.e., he lacks ko'aḥ gavra; see *Marriage). The claim is grounded not on the wife's desire to raise a family but on her right to sexual relations as such, and it is therefore of no consequence that she already has children, nor is she required to wait for ten years (Yev. 65b and codes; pdr 1:5, 9, 55, 59, 82, 84; 5:154). If the evidence leaves room for the conclusion that medical treatment may possibly lead to the husband's recovery, the court will refrain from obliging the husband to give a get immediately (Yev. 65b and codes; pdr 1:81, 84–89; 5:239). In principle, the wife's claim as to her husband's impotence is accepted as trustworthy in terms of the rule that she is believed in matters between her husband and herself; however, corroboration of her statements is required (Remaeh 154:7, pdr loc. cit.). In the opinion of some authorities, a wife who succeeds in her claim would also be entitled to the sum mentioned in her ketubbah, since her trustworthiness extends also to the pecuniary aspect (Pitḥei Teshuvaheh 154:7; Ha-Gra, ibid., n. 41); according to others, full proof is required with regard to the latter aspect (Tur and Sh. Ar., eh 154 and commentators thereto). However, should the wife have married her husband with knowledge of his defects, or if she acquired such knowledge after their marriage and nevertheless continued to live with him, she is considered to have waived her objections unless she is able to show that the defects became aggravated to an extent which she could not have foreseen (Ket. 77a and codes; pdr 1:5, 9, 10; 2:188, 192; 6:221, 223). If she is able to account for her delay on grounds which negate any waiver of rights on her part (such as failure to approach the court because of her embarrassment), her right to a divorce is likely to remain unaffected even if considerable time has elapsed since she first became aware of her husband's defects (pdr 1:11–12). No claim can be based on defects or circumstances which, however serious they may be, do not preclude the wife from cohabiting with her husband – e.g., his loss of a hand, leg, or an eye, etc. – whether occurring after the marriage or before, unless she proves that she did not know or, despite investigation, could not have known of the existence of the defect, and provided that she claims a divorce within a reasonable period after becoming aware thereof (Ket. 77a and codes; Resp. Rosh 42:2; Maggid Mishneh Ishut 25:11; Beit Shemuel 154 n. 2; pdr 1:5, 11, 65, 71).

Conduct of the Husband as a Ground for Divorce

Unjustified refusal of conjugal rights on the part of the husband entitled his wife to claim a divorce (Sh. Ar., eh 76:11; for her ancillary or alternative rights in this case, see *Moredet). Similarly, the wife may claim a divorce on the ground of her husband's unjustified refusal to maintain her when he is in a position to do so, or could be if he was willing to work and earn an income. In this event she may also claim *maintenance without seeking a divorce (Ket. 77a, according to Samuel, contrary to Rav). The court will not decree that a divorce should be given on the husband's first refusal, but only if he persists in his refusal after being warned and obliged by the court to pay her maintenance (pdr 5:329, 332). Were the husband totally unable to provide her with the minimum requirements ("even the bread she needs"), some authorities are of the opinion that he can even be compelled to divorce her, whereas others hold that there is no room for compulsion since his default is due to circumstances beyond his control (Yad, Ishut 12:11; Sh. Ar., eh 70:3 and commentators; pdr 4:164, 166–70). The husband will not however be obliged to grant his wife a divorce if he maintains her to the best of his ability, even if this be the measure of "a poor man in Israel" and not in accordance with the rule that "she rises with him but does not go down with him" (see *Maintenance; Sh. Ar. and commentators, loc. cit., pdr loc. cit.). Unworthy conduct of the husband toward his wife with the result that she cannot any longer be expected to continue living with him as his wife constitutes a ground for her to claim a divorce ("a wife is given in order that she should live and not to suffer pain": Ket. 61; Tashbeẓ, 2:8). The ground is established when his conduct amounts to a continued breach of the duties laid down as a basis for conjugal life, i.e., "let a man honor his wife more than he honors himself, love her as he loves himself, and if he has assets, seek to add to her benefits as he would deal with his assets, and not unduly impose fear on her, and speak to her gently and not be given to melancholy nor anger" (Yad, Ishut 15:19, based on Yev. 62b; see also *Marriage). Thus the wife will have a ground for divorce if, e.g., her husband habitually assaults or insults her, or is the cause of unceasing quarrels, so that she has no choice but to leave the common household (Remaeh 154:3; Ha-Gra, ibid., n. 10; Tashbez, loc. cit.; pdr 6:221). The same applies if the husband is unfaithful to his wife (Sh. Ar., eh 154:1 and commentators; pdr 1:139, 141); similarly, if he "transgresses the Law of Moses" – for instance when he causes her to transgress the dietary laws knowing that she observes them, or if he has intercourse with her against her will during her menstrual period (see *Niddah; Remaeh 154:3; pdr 4:342). If the husband is able to persuade the court that his wife has condoned his conduct (pdr 1:139, 142), or of his genuine repentance, the court will not immediately oblige the husband to grant a divorce. The court will direct the parties to attempt living together for an additional period in order to ascertain whether a divorce is the only answer for them, unless it is satisfied that no purpose will be served by such delay (Sh. Ar. and commentators, loc. cit.; pdr 1:87–89; 3:346, 351; 4:257, 259).

right of the husband to demand a divorce

The grounds on which the husband may demand a divorce (i.e., since the Ḥerem de-Rabbenu Gershom) are mainly similar to those which afford the wife this right against him, and previous awareness or condoning of these defects invalidates his claim (pdr 1:66).

Defects (or Disabilities) of the Wife

In addition, however, defects of the wife which provide the husband with grounds for a divorce are those which are peculiar to a woman as such, and which prevent the husband from cohabiting with her, or which render her unfit for or incapable of such cohabitation (Nid. 12b; Yad, Ishut 25:7–9; Resp. Rosh 33:2; Sh. Ar., eh 39:4 and 117:1, 2, 4; pdr 4:321; 5:131, 193). Included in such defects, according to the majority of the authorities, is epilepsy (Resp. Rosh 42:1; pdr 2:129, 134–6; 5:131, 194). If the husband was aware of such defects prior to the marriage or later became aware – or could have become aware – that they had existed before the marriage but still continued to cohabit with her, he will be considered to have condoned them and they will not avail him as grounds for divorce (Ket. 75 and codes; pdr 1:66; 5:193). Similarly a defect which becomes manifest in the wife only after the marriage does not provide the husband with a ground for divorce, unless she is afflicted with a disease carrying with it mortal danger, such as leprosy, or she has become incapable of cohabiting (Ket. loc. cit. and codes; pdr 2:129, 134–6; 5:131, 194). The husband may demand a divorce if his wife has failed to bear children within a period of ten years of their marriage, and he has no children (even from another woman), provided that he persuades the court of his sincere desire to have children (Remaeh 1:3; Sh. Ar., eh 154:1; see also Oẓar ha-Posekimeh 1, n. 13–60; pdr 4:353).

Conduct of the Wife

The husband will have ground for demanding a divorce if his wife knowingly misleads him into "transgressing the Law of Moses," as when she has sexual relations with him during her menstrual period and conceals this fact from him, or when she causes him to transgress the dietary laws, etc., knowing that he observes these laws (Ket. 72a and codes), but not if she acted inadvertently, or out of fear, or in ignorance of the law, or if the husband has by his own conduct shown that he is not particular about them (Remaeh 154:3; pdr 3:346, 350). Similarly, the husband may claim a divorce if his wife shows habitual immodesty or deliberately slights her husband's honor, as when she curses or assaults him, and generally any conduct on her part tending to disrupt normal family life in such manner as to convince the court that no further condonation and continuation of the matrimonial relationship can be expected of the husband (Ket. 72; Sot. 25a; codes; pdribid.). Condonation of the above also deprives him of his cause of action for divorce. A similar ground for divorce arises when the husband is able to prove, on the testimony of two witnesses, conduct on the part of his wife which gives rise to the strong suspicion that she has committed adultery, even if there is no evidence of actual adultery (Yev. 24b, 25a; Yad, Ishut 24:15; Sotah 2:13; Sh. Ar., eh 11:1). Where such proof is forthcoming, the husband is entitled to a judgment compelling his wife to accept a divorce (Sh. Ar. loc. cit. and commentators; Remaeh 115:4; pdr 1:51, 54; 2:125–8). If it is proved that the wife has committed adultery, of her own free will, she becomes prohibited to her husband and she will be unable to raise a plea of condonation on her husband's part, since there can be no consent to do what is prohibited by the law (Sot. 18b and 27b; Ket. 9a and codes; pdr 1:13). The wife can be compelled to accept a get against her will since she is not protected by the Ḥerem de-Rabbenu Gershom in this case. By virtue of the said prohibition, the wife herself may claim a divorce if her husband refrains from instituting action against her since he does not have the right to render her an agunah, because on the one hand he is prohibited from living with her and on the other she may not marry another man until divorced from her husband (Oẓar ha-Posekimeh 11, n. 1–54; pdr 5:154, 156); however, this is disputed by some authorities (pdribid.). In this case too the evidence of two witnesses is essential in terms of the rule that "in matters of incest (ervah) there cannot be less than two [witnesses]" (Yev. 24b; Kid. 66a; and codes). Thus, generally speaking, her confession alone will not suffice because of the suspicion that she has "set her eyes on another man" (Yev, 24b; Kid. 66a; pdr 3:260), nor will the evidence of one witness only, unless her husband states that he believes her or the single witness as he would two witnesses, and provided the court too is satisfied of the truth of the matter (Kid. 66a and codes). In this event the court will oblige but not compel the parties to divorce each other (Maim. loc. cit.; Sh. Ar. loc. cit.; pdr 4:160). A divorce on the grounds of adultery precludes the wife from remarrying her former husband – to whom she is prohibited by Pentateuchal law – and from marrying the man with whom she committed adultery – to whom she is prohibited by rabbinical law (Sot. 27b and codes). Moreover, she forfeits her ketubbah (Ned. 90b; Sh. Ar., eh 115:5). In cases of rape, the wife does not become prohibited to her husband unless he is a kohen (Yev. 56b and codes; see *Priest), nor does she lose her ketubbah (Ned. 91a and codes).

Divorce in the Case of a Prohibited Marriage

The court will always compel a divorce at the instance of either party to a prohibited marriage of the sort in which the marriage is valid when performed (see *Marriages, Prohibited), regardless of whether or not they had knowledge of the prohibition, as a matter of law or fact, and regardless of their continued cohabitation after becoming aware of the prohibition (Ket. 77a; Git. 88b; and codes).

The Will of Parties

the husband

To be valid, a get must be given by the husband of his own free will and is therefore invalid if given while he is of unsound mind, or under duress contrary to law (Yev. 112b; Git. 67b, 88b; and codes). "Contrary to law" in this context means the exercise of compulsion against him when it is not permitted in any way by law, or its exercise in an invalid manner; for instance, if he gives the get in order to escape a payment imposed on him contrary to law, even by judgment of the court. Such a case may be when he is ordered to pay maintenance to his wife or children without being at all liable for this, or when he is ordered to pay an excessive amount (pdr 2:9–14). However, if the law specifically authorizes that he be compelled to give a get – as in the cases mentioned above – or if he is lawfully obliged to make a payment to his wife – e.g., when ordered to pay interim maintenance in an amount due to his wife pending the grant of a get and he has the option of escaping this obligation by granting the get – then the get will not be considered to have been given by him under unlawful duress, since his own prior refusal to give it was contrary to law (Yad, Gerushin 2:20; bb 48a; Sh. Ar., eh 134:5). In order to obviate any suspicion that the get may have been given under duress contrary to law, it is customary, before the get is written and before delivery therefore, for the husband to annul all moda'ot, i.e., declarations made by him before others in which he purported to have been compelled to give a get (Beit Yosefeh 134:1; Sh. Ar., eh 134:1–3).

the wife

There must be free will on the part of the wife also to receive the get as laid down in the ẓerem de-Rabbenu Gershom, in order to maintain the prohibition against polygamy (see *Bigamy) lest the husband circumvent the prohibition by divorcing his wife against her will and thus become free to take another wife. The wife was therefore given a right similar to that of the husband and cannot be divorced except with her consent (Resp. Rosh 42:1; Remaeh 119:2). This applies even in those communities which did not accept the said ḥerem against polygamy (cf. Oẓar ha-Posekim 1, n. 68, 12). Already according to talmudic law, it was forbidden to divorce a woman who had become of unsound mind, even though it was not prohibited to divorce a wife against her will. If her condition is such that she is "unable to look after her bill of divorcement," the latter will be invalid according to biblical law since it is enjoined that "he shall give it in her hand" (Deut. 24:1) and such a woman has no "hand" in the legal sense (Yev. 113b and codes). Where she "knows how to look after her get" even though she "does not know how to look after herself," she still cannot be divorced, but in this case by rabbinical enactment, lest advantage be taken of her and the husband will remain liable for all pecuniary obligations to her even if he should take another wife (ibid.). This is all the more so in terms of the aforesaid ḥerem, since in both cases the wife is incapable of receiving the get of her free will. Whereas talmudic law did not require the husband to obtain permission of the court before taking another wife, the ḥerem had the effect of prohibiting the husband from doing so, save with the permission of 100 rabbis. (On the question of the first wife's legal status after the grant of permission as aforesaid, see *Bigamy.)

Execution of the Divorce

Divorce is carried into effect by the bill of divorcement being written, signed, and delivered by the husband to his wife. It is written by a scribe upon the husband's instruction to write "for him, for her, and for the purpose of a divorce." The materials used in the writing must belong to the husband and the scribe formally presents them as an outright gift to the husband before writing the get. The strictest care must be taken with the formula of the get, most of it in Aramaic, and the text is, with minor differences, according to the wording given in the Talmud. To obviate errors, it is still the practice at the present day to write the bill in Aramaic, although writing in any other language is theoretically permissible (Git. 19b, 87b and codes; on the rules of writing a get, its form and language, and the effect of variations therein, see Sh. Ar., eh 120ff.; for the version customary in Ereẓ Israel, see et, 5 (1953), 656; see also Yad, Gerushin 4:12; Sh. Ar., eh "Seder ha-Get" following n. 154). The following is a translation of an Ashkenazi get, according to the general usage in the Diaspora:

On the … day of the week, the … day of the month of …, in the year … from the creation of the world according to the calendar reckoning we are accustomed to count here, in the city … (which is also known as …), which is located on the river … (and on the river …), and situated near wells of water, I, … (also known as …), the son of … (also known as …), who today am present in the city … (which is also known as …), which is located on the river … (and on the river …), and situated near wells of water, do willingly consent, being under no restraint, to release, to set free, and put aside thee, my wife, … (also known as …), daughter of … (also known as …), who art today in the city of … (which is also known as …), which is located on the river … (and on the river …), and situated near wells of water, who has been my wife from before. Thus do I set free, release thee, and put thee aside, in order that thou may have permission and the authority over thyself to go and marry any man thou may desire. No person may hinder thee from this day onward, and thou art permitted to every man. This shall be for thee from me a bill of dismissal, a letter of release, and a document of freedom, in accordance with the laws of Moses and Israel. … the son of …, witness. … the son of …, witness.

The bill of divorcement is composed of the tofes, i.e., the formula common to all such bills, and the toref, i.e., the specific part containing the details of the particular case, concluding with the declaration that the woman is henceforth permitted to any man. Care must be taken to write the correct date on which the bill is written, signed, and delivered, otherwise it can be invalidated as a bill which is "anticipatory" or "in arrear" of the true date of its writing or signature or delivery (Sh. Ar., eh 127). The husband should also be careful to avoid sexual relations with his wife between the time of writing and delivery of the bill since such a bill, called an "antiquated" one (get yashan), although valid in the final instance, may not be used in the first instance (Git. 79b; Sh. Ar., eh 148:1). Once the witnesses sign the get, it is delivered by the husband to his wife in the presence of "witnesses to the delivery" (generally the same witnesses as sign; Sh. Ar., eh 133:1). Delivery of the get in accordance with the regulations renders the wife divorced from her husband and free to marry any man save those to whom she is prohibited by law, e.g., a kohen or paramour (see *Marriages, Prohibited). It is customary that after the wife has received the get she gives it to the court, who presents her with a document stating that she has been divorced according to law. The court then tears the get in order to avoid any later suspicion that it was not absolutely legal and files it away in its torn state (Beit Shemu'el 135:2; Sh. Ar., eh 154 (Seder ha-Get), ch. 6; Sedei ẓemed, Asefat Dinim, Get 1:23). The rules pertaining to the writing, signing, and delivery of a get are very formal and exact in order to avoid mistakes or a wrongful exploitation of the get, and they must therefore be stringently observed. (The exact details are to be found in Sh. Ar., eh 124–39.) As a result it was laid down that "no one who is unfamiliar with the nature of divorce (and marriage) may deal with them" (Kid. 13a). The Mishnah mentions a particular form of get which was customary in the case of kohanim, who were regarded as pedantic and hot-tempered and therefore likely to be hasty in divorcing their wives. This form of get – called a "folded" or "knotted" one as opposed to a "plain" get – consisted of a series of folds, each of which (called a ke sher) was stitched and required the signature of three witnesses (two in the case of a "plain" get) who signed on the reverse side and not on the face, between each fold. All this was done to draw out the writing and signing of the get so that the husband might reconsider and become reconciled with his wife (bb 160ff.). The "folded" get was customary in ancient times only and the rules pertaining to it are omitted from most of the codes (e.g., Maim., Tur, Sh. Ar.).

Agency in Divorce

Although divorce in Jewish law is the personal act of the husband and wife, their presence in person is not a necessary requirement for its execution. Delivery and receipt of the bill of divorcement, like any regular legal act, may be effected through an agent in terms of the rule that "a man's agent is as himself " (see *Agency; Git. 62b and codes). Appointment of the agent is made before the court by way of a power of attorney (harsha'ah), i.e., a written document very carefully and formally prepared to include all the relevant details, in which the agent is empowered to delegate his authority to another, and the latter to another in turn, etc. (Sh. Ar., eh 140:3; 141:29–30). An agent appointed by the husband for the purpose of delivering the get to his wife is called "the agent of delivery" and the get takes effect only upon delivery thereof by the husband or his agent to the wife or her agent, the latter called "the agent of receipt" (Sh. Ar., ibid.). In the latter case the fact that the wife may not know exactly when the get takes effect is likely to result in complications and doubts and it has not therefore been customary to resort to agency of this kind (Remaeh 141:29). The wife may also appoint a "delivery" agent – i.e., to deliver the get to her (and not to receive it on her behalf) after receiving it from the husband or his agent – in such manner that she will become divorced only upon delivery thereof to herself. The latter agent is not an "agent of receipt" and is subject to the same rules as is an "agent of delivery" (Sh. Ar., eh 140:5). The rules of agency in divorce are of practical importance in cases where the parties live in different countries and wish to avoid the expense involved in the grant and delivery of a get in the presence of each other, or where they do not wish to confront one another. The same applies when one of the parties is an apostate. In these cases the husband is enabled to divorce his wife by way of "conferring" the get on her (get zikkui), i.e., by delivery thereof to an agent appointed by the court, the divorce taking effect upon the agent's receipt of the get. (According to some of the posekim the get must thereafter be delivered to the wife herself so as to avoid doubt.) This halakhah, that the court can appoint an agent for the wife without her explicit consent or knowledge, is based on the rule that "a benefit may be conferred on a person in his absence" (Yev. 118b; see *Agency), on the following reasoning: if the husband becomes an apostate, it is presumed that the Jewish woman will always prefer living as a divorcée to living with an apostate; if the wife becomes an apostate, it can only be to her advantage if she no longer remains tied to her Jewish husband and will thus no longer be liable if she cohabits with another (see Remaeh 1:10 and 140:4; Oẓar ha-Posekimeh 1, n. 81, 1–9).

Conditional Get

A get may be written and delivered conditionally, that is so as not to take effect except on fulfillment of a stipulated condition, e.g., if the husband should fail to return to his wife within a specified period or that no word from, or concerning him, shall be forthcoming until then. The condition must not contradict the basic nature of divorce, i.e., the absolute severance of the marriage relationship between the husband and wife. To have validity it is necessary that all the complicated laws pertaining to *conditions be observed at the time of its imposition. Similarly, it must later be carefully investigated whether all the facts required to establish fulfillment of the condition have been adequately proved, since there is at stake the random divorce of a married woman. The doubts and complications attaching to a conditional get are likely to be particularly severe in the light of a rabbinical enactment to the effect that a plea of accident (force majeure, see *Ones) does not avail in divorce. Thus, contrary to the general rule that a person is not responsible for his act or omission resulting from accident, the husband cannot plead that the condition to which the validity of the get was subject was fulfilled only on account of accident – such as his failure to return in time due to an unforeseeable disruption of the means of transportation (Ket. 2b, 3a; Sh. Ar., eh 144:1; see also *Takkanot). Hence in general the practice is not to permit a conditional get save in exceptional cases, and then the above-mentioned laws may be of great practical importance, e.g., in times of persecution or war when there is separation between husband and wife and the danger of her becoming an agunah. In such cases the practice is sometimes adopted of granting a get on condition, e.g., if the husband should fail to return from the war by a certain date the get shall be deemed to be effective, and the wife divorced and free to remarry without need for a levirate marriage or ḥaliẓah. Upon fulfillment of the condition, the get will take effect either immediately or retroactively to the time of its imposition, according to the terms thereof, and provided that everything had been done in strict conformity with all the requirements of the law (Sh. Ar., eh 143, 144, 147; see also *Agunah, *Levirate Marriage). This aim may also be achieved by the conditional appointment of an agent, e.g., the appointment by the husband, before going to war, of an agent given written authority to write a get in his (the husband's) name and to deliver such to his wife, on condition that the power of attorney is not acted upon unless the husband should fail to return home within a stated period (Sh. Ar., eh 144:5, 6). The court itself may be thus appointed and may in turn, in terms of authority generally granted in the power of attorney, delegate its authority to a third party. A deathbed divorce (see *Wills) is also a conditional get, i.e., one given by a husband on his deathbed so as to free his wife from the requirement of a levirate marriage or ḥaliẓah. In practice such a get will also have no validity except if the husband dies, whereupon it will take effect retroactively from the date of its delivery (see Sh. Ar., eh 145).

Consequences of Divorce

Upon divorce, the parties are generally free to remarry as they please save as prohibited by law. The wife becomes entitled to the return of her own property from the husband, in accordance with the rules of law pertaining to the husband's liability therefor (see *Dowry). She is similarly entitled to payment of her ketubbah and dowry, save where she forfeits her ketubbah, e.g., because of her adultery. Divorce terminates the husband's legal obligation to maintain his wife, since this duty is imposed only during the subsistence of the marriage (Sh. Ar., eh 82:6). For charitable reasons, however, it is considered a mitzvah to sustain one's divorced wife more extensively than the poor at large (Remaeh 119:8). Upon divorce the parties are not permitted to continue their joint occupation of the former common dwelling, lest this lead to promiscuity (Sh. Ar., eh 6:7; 119:7, 11). If the dwelling belonged to one of them, whether owned or hired, it must be vacated by the other party and if it belonged to both it must be vacated by the wife (ibid.), as "the husband has greater difficulty in moving about than the wife" (Ket. 28a); although sometimes the courts, in order to settle financial matters between the parties, or in awarding compensation to the wife, will decide that the dwelling remain in her hands (see e.g., opd, 158, 163 no. 6). If the divorced parties nevertheless continue to jointly occupy the dwelling, or later return thereto – as testified to by witnesses – they will be presumed to have cohabited together as husband and wife for the sake of a marriage constituted by their sexual intercourse (kiddushei bi'ah: see *Marriage). This follows from the rule that "a man does not have intercourse for the sake of promiscuity if he is able to do so in fulfillment of a precept," i.e., it will not be presumed that the parties wished to transgress since they were lawfully in a position to marry each other (Yad, Gerushin 10:17; Sh. Ar., eh 149:1). Hence they will be required to divorce each other once again if they should wish to marry third parties, i.e., a "get out of stringency" (get mi-ḥumra) at least and possibly even out of an undoubted kiddushin between them (Sh. Ar., eh 149:1, 2; pdr 7:35). If the wife marries another man without having first obtained a second get as aforesaid, this marriage will accordingly require dissolution, since she is regarded as being the wife of the first husband (Sh. Ar., loc. cit.; Beit Shemu'el thereto, n. 4). Since the aforesaid presumption is founded on the premise that the parties were in a position to be lawfully wedded, it will not apply in the reverse situation, e.g., in the case of a kohen who is prohibited from remarrying his divorced wife, or when the wife has meanwhile become the widow of or divorced from another husband, or if the husband has meanwhile taken another wife and hence become prohibited by the ḥerem from being married at the same time to another, i.e., his former wife. Consequently, according to some of the codes, no second get will be required in all the above cases (Beit Shemu'el loc. cit.; pdr loc. cit.).

IN THE STATE OF ISRAEL

In terms of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713–1953, matters of marriage and divorce between Jews, citizens or residents of the state, fall within the exclusive jurisdiction of the rabbinical courts, which jurisdiction extends to any matter connected with the suit for divorce, including maintenance for the wife and for the children of the couple (sec. 3(1)). Divorce for Jews is performed in accordance with Jewish law (sec. 2). In applying the halakhah the rabbinical courts have introduced an important innovation, namely the award of monetary compensation to a wife who is being divorced; this is done even when the divorce is not specifically attributable to the fault of the husband, but the court, after close scrutiny of all the facts, is persuaded that the situation prevailing between the parties does not, objectively speaking, allow for the continuation of their marriage. In this event, the court, upon the husband's demand that his wife be obliged to accept a get, will customarily oblige the former to pay a monetary or equivalent compensation to his wife – in addition to her ketubbah – in return for her willingness to accept the get (opd 51–55; pdr 1:137). The extent of the compensation is determined by the court, having regard to all the circumstances, including the financial position of the parties and their respective contributions to the state of their assets.

[Ben-Zion (Benno) Schereschewsky]

enforcement

The legal position in Israel regarding the enforcement of divorce may be divided into two periods, the first extending from 1953 to 1995, and the second from 1995 onwards.

The Legal Position from 1953

The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713–1953 established the following procedure for enforcement of a judgment compelling the husband to grant a get to his wife, or compelling the wife to accept a get from her husband: "Where a rabbinical court, by final judgment, has ordered that a husband be compelled to grant his wife a get, or that a wife be compelled to accept a get from her husband, a district court may, upon expiration of six months from the day of the making of the order, on the application of the Attorney General, compel compliance with the order by imprisonment (sec. 6 of the Jurisdiction Law)."

This Law enumerates the following preconditions for imprisonment as a means of compelling the husband to grant a divorce: (a) the rabbinical court judgment ordering a compulsory get is a final one; where an appeal against the judgment is pending, it cannot be enforced; (b) the authority is granted exclusively where the judgment compels the giving of the get, and not where the ruling is that there is an obligation to give a get (hc 822/88 Rozensweig Borochov v. Attorney General, 42 (4) pd 759, 760); (c) six months have passed since the final judgment was given, and the get has not been given; (d) after that period, the Attorney General, and not the spouse, is authorized (at his own discretion – see hc 85/54 Zada v. Attorney General, 8 pd 738) to apply to the district court, requesting it to enforce compliance with the judgment, by way of imprisonment. The district court, and on appeal the Supreme Court, is the only legal instance empowered to compel the giving or receiving of a get by imprisonment of the spouse who refuses to comply with the judgment of the rabbinical court. The Law does not stipulate the length of the period, nor is it of fixed duration. The imprisonment terminates upon the granting of the get. In one case, the recalcitrant husband remained in prison for a number of decades until he died (ca 164/67 Attorney General v. Yichhieh & Ora Avraham, 22 (1) pd 29).

The power to determine whether there is a need to compel the granting of a get in a particular case is vested exclusively in the local rabbinical court, and in the Supreme Rabbinical Court, as an instance of appeal (see entries on *Bet Din and *Appeal). The Jurisdiction Law of 1953 established a mechanism for dual civil supervision over the compulsion of a get: (a) the initiative was neither of the spouse nor of the rabbinical court, but rather of the Attorney General; (b) the judicial instance that actually decided on the imprisonment of the recalcitrant spouse was the civil instance (the district court) and not the rabbinical court. According to the decision of the Supreme Court sitting as the High Court of Justice, the rabbinical court was not permitted to circumvent this supervisory mechanism by way of "intimidatory maintenance" (excessively high maintenance payments as a way of pressuring the husband into granting a get). This is because the legislation explicitly provided that the only way of enforcing judgments to compel the granting of a get is by way of an application made by the Attorney General, followed by a decision of the civil court. It follows therefore that this power was not conferred on the rabbinical court. An attempt on the part of the rabbinical court to procure the compulsion of a get by way of "maintenance and intimidation" would be overstepping its authority, and its ruling would be annulled by the High Court of Justice (see: hc 54/55 Rozensweig v. Head of Execution, 9 pd 1542., per Silberg J.)

The Legal Position since 1995

About 40 years after the enactment of the Jurisdiction Law of 1953 – and in view of the surfeit of unresolved agunah cases as a result of the complex mechanism described above – the Knesset pioneered a solution to the problem by the enactment of a special law to deal with enforcement of divorce judgments: The Rabbinical Courts Law (Upholding Divorce Rulings) (Temporary Provision), 5755–1995 (see *Agunah for a brief description of this Law).

The Law was initially enacted as a temporary provision, but after a few years it became a permanent law. Over the years a number of additions and amendments were introduced in the wake of the lessons derived from its implementation.

The Law introduces the following innovations, in contrast with the situation that had existed since 1953: (1) the rabbinical court judgment need not be final (as in the 1953 law); even if the judgment can be appealed, the provisions of the 1995 Law apply; (2) the power to compel the granting of a get under the 1995 Law is not limited specifically to cases in which judgment was given for the compulsion of a get (as in the 1953 Law). Hence, section 1 of the 1995 Law provides: "For purposes of this section, it is immaterial if the judgment used the wording of compulsion, obligation, mitzvah (positive precept), suggestion or any other wording"; (3) moreover, the 1995 Law can be invoked 30 days after judgment is given for granting the get, and there is no need to wait six months, as was the situation under the 1953 Law; (4) the authority to compel the spouse to comply with the divorce judgment no longer rests with the civil authorities (the Attorney General and the district court) as under the 1953 Law; this authority has been conferred on the rabbinical court; (5) the procedure itself is initiated by the spouse, who is no longer dependent on the Attorney General's application to the district court; (6) the rabbinical court is permitted, at its own initiative, to impose or to amend restrictive orders; (7) under the 1995 Law, the period of coercive imprisonment cannot exceed five years, but, if necessary for the purpose of fulfilling the judgment, the rabbinical court is permitted to extend this period from time to time, provided that the total period of imprisonment does not exceed ten years (under the 1953 Law the imprisonment period was unlimited).

Another innovation of the 1995 Law was the establishment of a hierarchy of sanctions, collectively known as "restrictive orders," which the rabbinical court is authorized to impose on the recalcitrant husband (see *Agunah for a specification of the restrictive orders).

Regarding criminal inmates who refuse to give or accept a get, the Law establishes special provisions within the framework of restrictive orders, which include the denial of benefits generally granted to inmates, such as: receiving furloughs, sending letters, receiving visitors, work in prison, and the like. Similarly, the rabbinical court is authorized to issue an order stating that an inmate of this ilk will not be released on parole, or will not be entitled to an administrative release.

The aforementioned restrictive orders of the 1995 Law are a modern application of the harḥakot (sanctions) of Rabbenu Tam, which allow the ostracizing of husbands who refuse to grant a get by prohibiting all social contact with them (shez 154:211 Rema, and see in further detail *Agunah). Indeed, the rabbinical courts have not regarded themselves as being limited to the specific restrictive orders enumerated in the 1995 Law, and in appropriate cases they added social-religious sanctions, such as not including the recalcitrant husband in a minyan, not giving him an aliyah to the Torah, prohibiting his burial in a Jewish cemetery, publicizing the entire matter, etc.

However, the most important and primary sanction established by the 1995 Law is the authority of the rabbinical court to imprison a person who refuses to comply with the divorce judgment. This imprisonment has proven to be particularly effective, and there have been quite a few cases in which the recalcitrant husband gave a get after just a short period in prison by order of the rabbinical court.

A special problem arises when the reluctant husband is in prison, serving a sentence for a criminal offense. How does one wield the imprisonment sanction against this kind of prisoner in order to compel him to give a get to his wife? The Law stipulates that, in such a case, service of the criminal sentence is discontinued, and from the date of the rabbinical court's order, the sentence being served by the inmate is regarded as being for his failure to give a get. After having given the get, he resumes the service of his criminal sentence (see section 47 of the Penal Law, 5737–1977).

Regarding inmates serving a sentence for a criminal offense, there may be cases in which the rabbinical court deems that imprisonment for compulsion of the get is not effective. In such cases, under section 3a of the 1995 Law, it is empowered to order that the inmate be held in solitary confinement for short, 14-day periods, and thereafter for seven-day periods, with intervals of seven days.

The rabbinical court has particularly broad discretionary powers under the 1995 Law. The Supreme Rabbinical Court supervises the rabbinical courts' implementation of the Laws by way of its power to stay execution of a restrictive order and within the framework of an appeal. This supervisory power applies both to restrictive orders and to the imprisonment that can be imposed on the husband refusing to give a get.

When recalcitrant husbands refusing to give a get petitioned the High Court of Justice, claiming that the imprisonment order issued by the rabbinical court violated their constitutional rights, their petitions were dismissed by dint of this brief and incisive argument: "The petitioner holds the key to his release from prison; when he gives the get to his wife, he will go free" (hc 3068/96 Goldshmidt v. Goldshmidt and the Supreme Rabbinical Court; hc 631/97 Even Tzur v. Supreme Rabbinical Court).

Originally, the 1995 Law regulated the manner of enforcing the get in cases where the husband is the party obliged to give the get. But the Law was amended shortly after its enactment, prescribing slightly different provisions for cases in which the wife refuses to accept a get from her husband. While the nature of the sanctions against the husband or the wife is essentially the same, with respect to their imposition on women, sections 1(c), (e), and (f) of the Law place the following two limitations: the first is the requirement of the advance approval of the president of the Supreme Rabbinical Court; the second is that, if restrictive orders against the wife have already been issued, the husband's application for permission to marry will not be adjudicated until three years have passed since the restrictive order was given.

It should be mentioned that the provisions of the 1995 Law do not detract from the provisions of the 1953 Law, and it is possible to enforce a divorce under either one of the two laws. However, in view of the effectiveness of the new law, since its enactment in 1995 it has been used exclusively, and the 1953 law is no longer applied.

Great importance is attached to the 1995 Law and the sanctions that have been imposed by rabbinical courts for enforcement of divorce judgments, and they have led to a significant reduction in the number of agunot in Israel. The rabbinical courts also relied upon the existence of enforcement measures in Israel as a justification for extending their jurisdiction to include Jewish couples with a limited connection to Israel, especially in cases in which they were civilly divorced abroad, and the woman requires a get according to the halakhah in order to be able to remarry (see judgments of the Supreme Rabbinical Court, Appelbaum v. Appelbaum, File 1239–53–1, and Anon. v. Anon., judgment from 30.6.04). The latter judgment was adjudicated in hc 6751/04 Sabag v. Supreme Rabbinical Court. The majority view (Justices Procaccia and Adiel) was that the rabbinical courts in Israel do not have jurisdiction to adjudicate these cases. The minority view (Justice Rubinstein) was that the rabbinical court is competent to adjudicate the maintenance payments for a wife who is prevented from marrying due to the husband, even when the spouses are foreign residents, but Jewish. It should be noted that the Law was amended in 2005, and subject to a number of conditions stipulated in the amended Law, the Israeli Rabbinical Court now has jurisdiction over Jewish couples that were married abroad in accordance with din torah, and the 1995 Law applies to those couples as well (see in detail in the entry *Bet Din).

The aforementioned Knesset legislation of 1995 therefore makes an important contribution towards the resolution of the problem of the agunah, but the solution it provides is partial only, and the entire subject of the agunah still awaits an appropriate and desirable solution. The appropriate path for a comprehensive solution of the agunah problem is discussed in detail under *Agunah.

In other dimensions too, the Israeli legal system operates in order to enforce the divorce and prevent a situation of agunah. For example, Elon opined that extradition abroad of a person suspected of murder could be delayed for at least one year in order to enable the rabbinical court to process the divorce of the parties involved, and thus prevent a situation in which the wife of the candidate for extradition would become an agunah; see hc 852/86 Aloni v. Minister of Justice, 41 (2) pd 1, 70 onwards (see 9 Teḥumin, 63 for the judgment of the rabbinical court).

There is now a new method for assisting in the enforcement of divorce judgments of the rabbinical courts if the wife receives a judgment obligating the husband to divorce her, and the husband refuses to comply: in such a case, the wife can sue him for the damage caused to her. In a recent ruling, the Jerusalem Family Court awarded damages in a case of this kind, basing itself on the general rules of negligence. The court ruled that the husband's failure to comply with the rabbinical Court's ruling, ordering him to give his wife a get, constituted a grave violation of the wife's autonomy and her right to self-realization. It violated her dignity and her freedom, causing her emotional damage by sentencing her to a life of loneliness, lack of partnership, intimacy, and sexual relations with a member of the other sex (ff 19270/03 Anon. v. Anon.: given by Judge Menahem Hacohen on 24.12.04).

[Moshe Drori (2^nd ed.)]

STATISTICS

Europe

In 1897, the Russian Jews in the Pale of Settlement had a much higher divorce rate than other religious or ethnic groups. Jewish men in the relatively large cities had, on the average, 5.4 divorces per 1,000 males, while the others had only 2.2 per 1,000. In the case of the females the index was 19.1 and 5.4 respectively. Those who lived in smaller communities or rural places had a smaller percentage of divorces. It thus appears that the Jewish population had a much higher divorce rate than non-Jews. In both instances there was a larger percentage of divorces among the women than the men (since women are less likely to remarry) and those who lived in large cities had a higher divorce rate than their coreligionists in towns and rural communities. European Jewish communities witnessed in the years before World War i an upward trend in their divorce rate. One-eighth of those who were divorced or separated in Austria in the years 1882–89 were Jewish, but in the decade 1890–99 they constituted 15.8%, falling to 9.7% in the years 1900–12. Since in Austria the Jews formed only 4.8% of the population in 1890 and 4.6% in 1910, divorce was more prevalent among them than among other religious groups, many of whom were Roman Catholics. However, during this period, relating the number of divorces and separations to the number of marriages, the Jews had a lower rate of increase in divorces than others. The same was true of Prussia where during the same period the Jewish divorce rate continued to rise, but not as fast as the one of non-Jews. This suggests that the attitude of non-Jews to divorce was changing, and once this had occurred their divorce rate began to increase more rapidly than that of the Jews. The divorce rate of European Jews increased considerably in the years between World War i and World War ii. The index of divorces per 1,000 living spouses of Jewish males in Polish cities increased from 2.8 in 1921 to 6.8 in 1931, while that of non-Jews in the same towns was 3.5 and 7.9. In the case of the females, the increases were from 9.6 to 17.3 and from 6.9 to 14.8 respectively. As in the case of Russia, the males had a relatively smaller number of divorces than the females, partly because of the difference in their remarriage rates. Because most of them were Roman Catholics, for whom remarriage was almost impossible, the non-Jewish males had a larger percentage of divorces than the Jewish group. Jewish women had a higher index of divorces because of the anti-divorce attitude of the Catholic Church. The Hungarian Jewish community, which had in 1930 a population of approximately 445,000, had a higher index of divorces than the Polish Jews and a larger increase in the decade 1920 to 1930. Urban Jews had a higher index than those in other localities; the Budapest community, for instance, had the largest percentage of divorces. The Jews in Czechoslovakia had a lower index of divorces than their coreligionists in Hungary. This may have been partly due to the fact that one-twelfth of the Czechoslovakian Jews were engaged in agriculture while only 2.7 were similarly employed in Hungary. German-born Jews in Prussia had in 1925 a larger percentage of divorces than their immigrant brethren. The index of divorces of the former was 14.0 for the males and 29.3 for the females; in the case of the immigrants the indices were 13.5 and 18.8 respectively. The differences were even more pronounced in Berlin, where the German-born males had an index of 24.8 and the females of 47.2 whereas the others had indices of only 18.8 and 23.4 respectively.

British Commonwealth

In Australia, where the number of divorces increased between 1911 and 1954, the male index rising from 7 to 38 and the female from 11.5 to 48.7, the Christians had in 1954 about the same percentage of divorces as the Jews. Canada had in 1931 a very small percentage of divorces, partly because those who had been separated from their spouses were not reported as such. Moreover, adultery was officially the only ground for divorce. The 1941 census report, however, had data on divorce and separation according to ethnic origin in cities with at least 30,000 inhabitants. Taking Montreal, Toronto, and Winnipeg, the three largest Jewish communities, the results were: the index for Jewish males was 14.8 and for Jewish females 24.8, while for the other males and females it was 26.3 and 40.7 respectively. The differences are mainly due to the fact that Jews have a low separation index.

Muslim Lands

Muslims usually have a large percentage of divorces. The Jews in Egypt had a much lower index of divorces than the Muslims. In and around Alexandria and Cairo, the index of divorces of the Muslim males in 1927 was 44.9 and that of the Jews 12.7; the corresponding female indices were 64.1 and 25.6. The Christians had about half as many divorces as the Jews. Twenty years later, the index of the Muslim males had dropped to 26.5 and that of the females to 49.7, while the Jewish indices had increased to 15.1 and 27.0. In 1951 in Morocco Jewish males had a relatively smaller number of divorces than Muslims, the indices being 14.4 and 22.6. However the female index of 57.6 was higher than that of Muslim females.

The U.S.

As far as the United States is concerned, it is difficult to assess the divorce rates of any of its religious or ethnic groups since the agencies which collect data on marriage and divorce do not use such classifications. Nor does the Bureau of the Census report the marital status of the population according to religious or ethnic origin. The only sources of information are surveys of Jewish communities or samples of the population in which Jews are included. As few attempts have been made to survey very large communities and some of the investigators do not use standard definitions or classifications, the results of these surveys and studies are suggestive rather than conclusive. Though the so-called family crisis at the beginning of the period of mass immigration was probably neither very serious nor of long duration, Jewish social agencies became very much interested in the family life of the immigrant. Studies made in the early 20^th century showed that desertion was not as prevalent among Jews as among other ethnic and religious groups. An analysis of the Chicago Court of Domestic Relations in 1921 demonstrated that only 10.4% of the deserters whose religion was the same as their wives were Jewish. In 1929–35, when about one-tenth of Chicago's population was Jewish, only 5.5% of the non-support cases were Jewish couples, with those of Jewish origin whose spouses were not Jewish accounting for another 0.7%. In Philadelphia in the years 1937 to 1950, when Jews constituted about 16% of the white population, they accounted for 11.8% of the white couples who were divorced. Baltimore Jews also had low desertion and divorce rates. In 1936 and 1938, when at least one-tenth of the white population was Jewish, they formed only 5.3% of the white deserters. Similarly in the Detroit Jewish community broken homes were less prevalent than in other religious groups there. According to a metropolitan survey in 1958 only 4% of the Jewish respondents who had ever married reported that they had been divorced, as compared with 8% of the Catholics and 16% of the Protestants. However, a study made in 1955 reported that the Jews in several cities had a higher divorce and desertion rate than Protestants. Taken on the whole, these results show that divorce, separation, and desertion were less prevalent among American Jews than others, and surveys of Jewish communities made since 1946 showed that they have a relatively smaller number of broken homes than the rest of the white population. Divorce was more prevalent among those whose spouses are not Jewish than when both of them are of Jewish origin. (The above statistics are quoted by N. Goldberg in Jews and Divorce (see bibl.)). In more recent times Jewish divorce rates have followed the upward trend in the United States as a whole.

bibliography:

general: J. Freid (ed.), Jews and Divorce (1968). in the bible: Cowley, Aramaic, nos. 9, 15, 18; Pedersen, Israel, 1–2 (1926), 71, 232; L.M. Epstein, The Jewish Marriage Contract (1927), index; Epstein, Marriage, 41–42, 53; J. Patterson, in: jbl, 51 (1932), 161–70; C.H. Gordon, in: zaw, 54 (1936), 277–80; I. Mendelsohn, in: ba, 11 (1948), 24–44; E. Neufeld, The Hittite Laws (1951), 146ff.; J.J. Rabinowitz, in: htr, 46 (1953), 91–7; D.R. Mace, Hebrew Marriage (1953), 241–59; E.G. Kraeling, The Brooklyn Museum Aramaic Papyri (1953), nos. 2, 7, 14; A. van Selms, Marriage and Family Life in Ugaritic Literature (1954), 49ff.; R. Patai, Sex and Family in the Bible and the Middle East (1959), 112–21; de Vaux, Anc Isr, 34ff.; R. Yaron, Introduction to the Law of the Aramaic Papyri (1961), 44–65; J. Hemple, Das Ethos des Alten Testaments (1964), 70–71, 165ff.; B. Cohen, Jewish and Roman Law, 1 (1966), 377–408; Z. Falk, Jewish Matrimonial Law in the Middle Ages (1966), 113–43; B. Porten, Archives from Elephantine (1968), 35, 209ff., 223–4, 261–2; Pritchard, Texts (1969³), 159–98, 222–3. in jewish law: D.W. Amram, The Jewish Law of Divorce … (1896); L. Blau, Die juedische Ehescheidung und der juedische Scheidebrief… 2 vols. (1911–12); I.B. Zuri, Mishpat ha-Talmud, 2 (1921), 36–56; Gulak, Yesodei, 3 (1922), 24–30; B. Cohen, in: rej, 92 (1932), 151–62; 93 (1934), 58–65; idem, in: paajr, 21 (1952), 3–34; republished in his: Jewish and Roman Law (1966), 377–408; addenda, ibid., 781–3; et, 5 (1953), 567–758; 6 (1954), 321–426; 8 (1957), 24–26; Elon, Mafte'ah, 26–37; M. Silberg, Ha-Ma'amad ha-Ishi be-Yisrael (1965⁴), 365–75; Berkovits, Tenai be-Nissu'in u-va-Get (1966); B. Schereschewsky, Dinei Mishpaḥah (1967²), 271–342; M. Elon, Ḥakikah Datit… (1967), 165–7; idem, in: ilr, 3 (1968), 432f. add. bibliography: M. Drori, "Enforcement of Divorce in the State of Israel at the End of the 20^th Century," at: www.sanhedrin.co.il; A. Be'eri, "Harḥakot Rabbeinu Tam: New Approaches to Pressuring a Husband to Divorce His Wife," in: Shenaton ha-Mishpat ha-Ivri, 18–19 (2002–4), 65–106; "Individual versus Public Interest (Fear of Agginot as Opposed to an Extradition Order)," in: Teḥumin, 9 (1988), 63.

Divorce

effects on childrendavid h. demo,andrew j. supple

effects on coupleskari henley, kay pasley

effects on parentscolleen l. johnson

EFFECTS ON CHILDREN

Two of the strongest and most widely held beliefs about contemporary family life are that marriage should be a lifelong commitment and that parental divorce has serious negative effects on children. Because of the conviction with which these values are held, many people are alarmed by the high divorce rate in the United States and in many other industrialized nations. Across industrialized nations, the divorce rate is by far the highest in the United States, where about half of all first marriages formed in the 1990s will end in divorce, and more than one million children experience parental divorce each year (U.S. Bureau of the Census 1998). While the divorce rate in the United States is 4.33 per 1,000 population, the comparable rates in the United Kingdom, Sweden, Canada, Germany, France, Japan, and Italy are 2.91, 2.42, 2.41, 2.14, 2.01, 1.65, and .47, respectively (United Nations 2000). Although marital dissolution is an important social issue in many countries, research on its effects on children has largely been conducted in the United States.

In the United States, dramatic changes in children's living arrangements have occurred across all racial, ethnic, and socioeconomic categories. From 1970 to 1998, the percentage of white children living with two parents (including stepparents) fell from 90 percent to 74 percent; for African-American children, the percentage declined from 60 percent to 36 percent; and for Hispanic children, the percentage decreased from 78 percent to 64 percent (Teachman, Tedrow, and Crowder 2000).

With so many children and adolescents experiencing their parents' divorce and living in single-parent families and stepfamilies, it is important to understand how parental divorce affects children. During the 1980s and 1990s, a considerable amount of social scientific scholarship was devoted to considering whether or not divorce negatively affects the lives of children. Social scientific and psychological evidence regarding the influence of divorce on children is also used in formulating social policies and laws regarding marriage and divorce. In the 1990s alone, more than 9,000 studies on divorce were conducted in the United States across a variety of disciplines, including sociology, family studies, developmental psychology, clinical psychology, family therapy, social work, social policy, and law (Amato 2000).

With so much attention being devoted to the topic across such diverse fields, and with divorce being both deeply personal and controversial, it is perhaps not surprising that there are different interpretations of the consequences of divorce for children. Although there are scientific data to suggest that divorce has negative effects on children, scholars are not in complete agreement regarding how strong the effects are, whether or not negative effects are due to divorce as an event or a process, and whether or not divorce may actually be good for children in some situations. Three prevailing themes are supported by the bulk of research evidence: (1) divorce is better understood as a process rather than a discrete life event; (2) the consequences of divorce for children are not as severe nor as longlasting as popularly assumed; and (3) there is a substantial degree of variation in how individual children and adolescents respond to divorce. This last point suggests that divorce undoubtedly has some negative effects for some children, particularly in certain situations. What is not clear, however, is whether the negative effects of divorce are due to family circumstances prior to the divorce, or after divorce.

Divorce as a Process

One instructive means of thinking about divorce is to consider divorce not as a single event that influences people's lives, but rather as a process. This conceptualization of divorce suggests that the manner in which divorce ultimately affects children involves a confluence of factors and processes that occur early in the divorce, as well as processes occurring after the divorce. Moreover, this line of reasoning suggests that many negative effects for children in divorced families may be due to exposure to traumatic experiences and processes that have nothing to do with divorce per se. That is, children whose parents divorce witness negative family interaction prior to a divorce and also experience many life transitions and strained familial relationships after divorce. This view of divorce as a process has been corroborated in a review of studies conducted in the United Kingdom, New Zealand, and Australia (Rodgers and Pryor 1998).

Marriages that end in divorce typically begin a process of unraveling, estrangement, or emotional separation years before the actual legal divorce is obtained. During the course of the marriage, one or both of the marital partners begins to feel alienated from the other. Conflicts with each other and with the children intensify, become more frequent, and often go unresolved. Feelings of bitterness, helplessness, and anger escalate as the spouses weigh the costs and benefits of continuing the marriage versus separating. Gay C. Kitson's (1992) influential study of marital breakdown describes a distressing process characterized by emotional distance, dissatisfaction, and frequent thoughts and discussions about whether and how to separate. Many unhappy couples explore marital counseling, extramarital relationships, and trial separations, with marital happiness fluctuating upward and downward from day to day and year to year as the marital relationship and marital roles are renegotiated.

These predivorce changes in the family often negatively influence the psychological states of parents; parental stress, anxiety, and depression, in turn, inhibit effective parenting. Paul R. Amato and Alan Booth (1996) conducted a rare longitudinal study on a national sample and documented problems in parent-child relationships as early as eight to twelve years prior to parental divorce. Other studies observe that, before parental divorce, U.S. and U.K. children and adolescents suffer due to high levels of marital discord, ineffective and inconsistent parenting, diminished parental wellbeing, and reduced parent-child affection (Demo and Cox 2000; Rodgers and Pryor 1998). Taken together, these studies suggest that the alterations in family functioning that occur during a predivorce process lead to children witnessing their parents fighting, parents' emotional and psychological states deteriorating, and diminishing levels of parental warmth, affection, and supervision. It is important to note that these changing family dynamics contribute to children experiencing behavior problems prior to parental divorce, and that children's behavior problems, in turn, strain marital relationships, undermine parental well-being, and increase the chances of parental divorce (Acock and Demo 1994; Cherlin et al. 1991). Consequently, some researchers would argue that the negative effects of divorce on children begin well before an actual divorce occurs.

For both parents and children, the most difficult and stressful phase of the divorce process is usually the period leading up to and immediately following parental separation and divorce. The uncoupling process takes on several dimensions at this stage, as divorcing parents confront legal challenges and expenses, make their intentions public to family and friends, and redefine their roles as residential and nonresidential parents.

In addition, the process of unraveling and family dissolution continues, coupled with numerous potentially life-altering transitions for children. Following divorce, children live in many different family forms, but the most common pattern is they live with their mothers and have less contact with their fathers. In the United States, five of every six single-parent households are headed by a mother (U.S. Bureau of the Census 1998). As a result, a common alteration that children are forced to make is an adjustment to life without their father at home. Most children share time between the mother's household and the father's household, and families are creative in finding ways for children to maintain meaningful relationships with both parents. For example, children change residences to accommodate changes in their relationships with their parents, changes in parental employment, remarriage, and stepfamily formation (Maccoby and Mnookin 1992). Still, most children suffer from declining father involvement after divorce. National surveys indicate that more than one-fourth of children living in single-mother families never saw their fathers in the previous year, slightly more than one-fourth saw their fathers at least weekly, and among those children who maintain regular contact with their fathers, less than one-third had opportunities to spend significant amounts of time with them. There is evidence, however, that frequent father-child interaction and close relationships are more common in African-American families. Postdivorce father involvement is also higher among fathers who had very close relationships with their children prior to divorce, fathers who live near their children, and fathers who have joint custody (Arditti and Keith 1993; Mott 1990). These studies provide further evidence to suggest that characteristics of families prior to and after divorce ultimately influence the adjustment and well-being of children.

Individual Variation

Substantial research evidence shows that, on average, children who have experienced parental divorce score somewhat lower than children in first-marriage families on measures of social development, emotional well-being, self-concept, academic performance, educational attainment, and physical health (Amato 2000; Furstenberg and Kiernan 2001). This conclusion is based on group comparisons that consistently show small differences between the average adjustment level of children in first-marriage families and the average level for children whose parents have divorced. Equally important, but less well understood, is that children and adolescents in divorced families vary widely in their adjustment (Demo and Acock 1996). That is, many children exhibit delinquent behavior, difficulties with peers, and low self-esteem following their parents' divorce, while many others adjust readily, enjoy popularity with friends, and think highly of themselves. A useful way of thinking about this is that children's adjustment within any particular family structure (e.g., first-marriage families, divorced families, stepfamilies) varies along a continuum from very poor adjustment to very positive adjustment, with many children and adolescents faring better postdivorce than their counterparts living in first-marriage families. This latter point raises the possibility that in some cases, parental divorce may have positive effects on children. Children most likely to benefit from parental divorce include those who endured years of frequent and intense marital conflict (Amato and Booth 1997; Hanson 1999), and those who develop very close, mutually supportive, and satisfying relationships with single parents (Arditti 1999). These studies support the notion that preand postdivorce family environments (i.e., highly conflicted prior; supportive after) have great potential to assist in understanding how children will adjust to life after their parents' divorce.

The preponderance of scientific evidence thus suggests that popular impressions, media images, and stereotypes greatly exaggerate the effects of divorce on children. On average, there are small differences in emotional and social adjustment between children of divorce and children in intact families, and in some instances, parental divorce has a positive effect on children. Most children and adolescents experience short-term emotional, behavioral, and academic difficulties, which usually peak at the point in the divorce process when their parents physically separate and engage in legal battles related to divorce. These problems tend to subside with time, however. Children tend to be resilient, adapt well to most changes in their family roles and life situations, and exhibit normal adjustment (Emery and Forehand 1994). Still, a minority remains vulnerable. Following divorce, approximately 20 to 25 percent of children in divorced families experience long-term adjustment problems, compared to roughly 10 percent of children in first-marriage families (Hetherington and Stanley-Hagan 2000).

The children and adolescents who appear to be most vulnerable socially and emotionally are those who experience multiple transitions in parenting arrangements throughout their childhood. Research indicates that children who experience no changes in family structure (e.g., children who live continuously with both biological parents, or those who live their entire childhood with a single parent) have higher levels of adjustment (Demo and Acock 1996; Najman et al. 1997). As the number of parenting transitions increases, children's adjustment generally decreases, albeit modestly. Thus, children whose parents divorce (one transition) have somewhat lower adjustment; those who experience divorce and subsequent remarriage of their residential parent (two transitions) exhibit lower adjustment than those in the one transition group; and children who experience two or more parental divorces and/or remarriages have the lowest adjustment and most behavioral problems (Capaldi and Patterson 1991). Studies conducted in the United Kingdom, New Zealand, and Australia corroborate these findings (Rodgers and Pryor 1998). Again, there is wide variation among children who experience multiple family transitions, but the evidence suggests that each change in parenting arrangements represents a risk factor, thus increasing the likelihood that a child will react negatively to their postdivorce environment.

Interventions to Alleviate the Negative Effects of Divorce on Children

Overall, research suggests that family relationships and economic circumstances prior to and following divorce have considerable potential to influence child adjustment. Consequently, there are ample opportunities for intervention efforts that may offset some of these negative processes.

Given that a large proportion of U.S. children will experience divorce, an important research and public policy objective is the development of strategies to assist children during the divorce process. Although in some instances divorce may have positive effects for children (as in the case where exposure to intense and frequent fighting between parents is reduced), in many other situations, changing parent-child relationships, life transitions, and economic strains that accompany divorce present challenges to children's well-being. Social science research has successfully identified key factors accompanying divorce that negatively affect children, thus illuminating potential areas for intervention. That is, programs and policies can be developed to address the factors that ultimately compromise children's well-being during the divorce process.

Many states require divorcing parents to complete either a divorce mediation or parent education program (Emery 1995; Grych and Fincham 1992). These programs are designed to increase parents' understanding of the difficulties that their children may face during the divorce process. Parents are taught, for example, how to manage their conflict, avoid treating children like pawns in disputes, and to appreciate the importance of maintaining positive relationships with their children. Studies have shown that following a divorce, parents may find it difficult to maintain optimal parenting behaviors, such as monitoring their children's activities, providing warmth and support, and keeping consistent rules. Consequently, if programs for parents can intervene and educate divorced parents to the importance of maintaining positive parenting during stressful transitions, some negative effects on children may be mitigated.

Other possible areas for intervention include policies and programs that recognize the economic strain that divorcing parents, and especially the custodial mother, often face post-divorce. Studies have shown that custodial mothers often face dramatic economic losses following divorce, leading to feelings of stress that adversely affect parenting. Researchers have postulated that divorce is disruptive for children largely because the custodial parent faces a significant amount of economic stress in the time period immediately following the divorce (Furstenberg 1990). Economic loss may trigger multiple transitions for the child (e.g., moving, changing schools, taking in other household members), adversely affecting child well-being. Social policies should address the economic strain experienced by divorcing parents and recognize its potential to adversely affect family relationships.

Another important step toward reducing the negative effects of divorce on children involves the de-stigmatization of divorce. Given our cultural emphasis on the sanctimony of marriage and our cultural disapproval of divorce, many children suffer psychologically because they perceive that their family experiences are dysfunctional. Societal mores and cultural beliefs strongly devalue divorced families. Such families (in their many forms) are judged to be inferior to the traditional nuclear family headed by a male breadwinner and female mother and homemaker who live together from marriage until death, and who produce and rear children in an intact family environment. The popular North American culture, Hollywood movies, television sitcoms and talk shows, and best-selling books on how to survive divorce perpetuate these images and sensationalize the negative experiences of parents and children living in postdivorce families. In European countries, there is great concern about rising divorce rates, but divorce may be seen as more acceptable, at least in Sweden (Wadsby and Svedin 1996). Consequently, most U.S. children who experience parental divorce face the challenge of adjusting to new family arrangements and life situations in a society that has negative perceptions and stigmas associated with divorced families. Another way to allay negative feelings related to divorce, then, would be to counsel children regarding the normative process of divorce, to let them know that they are not alone as children of divorce, and to educate them regarding the healthy functioning of many divorced families. Finally, scholars in the United States, United Kingdom, and Australia have suggested that social service personnel and officials of the courts could be trained to be supportive of divorcing parents and their children as a means to strengthen family relationships and reduce feelings of stigma.

See also:Child Custody; Conduct Disorder; Divorce: Effects on Couples; Divorce: Effects on Parents; Divorce Mediation; Grief, Loss, and Bereavement; Intergenerational Relations; Interparental Conflict—Effects on Children; Interparental Violence—Effects on Children; Juvenile Delinquency; Parenting Education; Religion; Remarriage; Self-Esteem; Single-Parent Families; Stepfamilies; Stress

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david h. demo andrew j. supple

EFFECTS ON COUPLES

Compared internationally, the United States has the highest divorce rate by a large margin—one and a half times that of the United Kingdom, approximately twice that of Japan, Germany, France, and Sweden, and more than seven times that of Italy. Although estimates vary, approximately half of all first-marriages and 60 percent of remarriages in the United States end in divorce. In the mid-nineteenth century approximately 5 percent of first marriages ended in divorce, so this dramatic increase in divorce has implications for all family members. Those family members most studied are children; yet the decision to end a marriage and the experiences that follow also affect the divorcing adults.

Explaining Adjustment to Divorce: Theoretical Perspectives

Numerous theoretical perspectives have been used to explain how adults adjust to divorce, including feminist theories, social exchange theory, family systems theory, social learning theory, and sociobiological theories. However, many researchers apply family stress theory to offer two general models of adult adjustment. The crisis model suggests that divorce poses a crisis for divorcing adults that results in temporary declines in well-being, but from which most individuals ultimately recover. The chronic strain model depicts divorce as setting a number of other stressful events into motion (e.g., moving to a new neighborhood, ongoing conflict between the former spouses, economic hardship) that send divorced individuals into a downward spiral from which they never fully recover. Research supports both models to some degree. In a review of research from the 1990s regarding the consequences of divorce, Paul Amato (2000) found that the crisis model best described the postdivorce experiences of some individuals, and the chronic strain model best described the experiences of others. He concluded that both models contained some truth, and that the determination of which model more accurately depicted postdivorce adjustment largely depended upon characteristics of the individuals studied (e.g., education, age, self-esteem), as well as the context in which the divorce occurred (e.g., social support networks, child custody status).

Adult Adjustment

Divorce affects the couple economically, mentally, emotionally, and physically. Divorce also influences the current and future relationships of the couple. Despite the predominant belief that only negative outcomes exist (deficit perspective), divorce also benefits some individuals. Best viewed as a process rather than a discrete event, divorce influences individuals before the divorce occurs, immediately following the divorce, and years later.

Economic outcomes. Because of the political and policy implications of the economic situation associated with divorce, much attention has focused on its economic impact. In the United States, Canada, and most other countries, women generally experience a decline in their economic situation following divorce, whereas men undergo lesser declines or slight increases in their economic status. It is important to note that differences in both the magnitude of these changes and the disparity between men and women's postdivorce economic outcomes have been debated (see Braver and O'Connell 1998, for a discussion of U.S. findings). However, research shows that German men fare better than U.S. men after divorce, and German women fare worse than U.S. women (Burkhauser et al. 1991). Similarly, Indian women generally fare worse economically than their U.S. counterparts, whereas Indian men experience little or no economic disruption following divorce (Amato 1994). Therefore, although magnitudes may differ, the same postdivorce economic pattern appears to occur cross-culturally.

Because divorce divides resources that originally went to one household, an immediate decline in the standard of living for both spouses results. How severe and how long the decline lasts affects couples' postdivorce adjustment due to the economic hardship imposed. It also is important to understand individuals' perceptions of the degree of economic hardship, as these perceptions affect adjustment more than objective measures of their economic situation. For example, Hongyu Wang and Paul Amato (2000) explained that an objective decline in standard of living may be viewed positively, if the more limited income also is accompanied by a gain in control over the income.

Mental and emotional outcomes. Studies demonstrate that divorced individuals exhibit higher levels of depression and anxiety than do individuals who are married, and those divorced also tend to have poorer self-concepts and exhibit more symptoms of psychological distress (compared with those who are married). Those with a history of two or more divorces report significantly more depression than either those with one divorce or those who are not divorced (Kurdek 1991), suggesting the cumulative nature of stress from divorce. Research findings are similar in other countries, as Amato (1994) found that two-thirds of divorced women in India suffer severe emotional problems. Further, Sheila Cotten (1999) noted that the common practice of categorizing divorced and widowed individuals into a single group underestimates the actual depression levels of divorced individuals, because widows often exhibit lower levels of depression and psychological distress. Consistent with the crisis model of divorce adjustment, depressive symptoms appear to peak shortly after the divorce and then gradually decline for most.

Physical outcomes. Divorced individuals also have more health problems and higher mortality rates than married or other nondivorced persons. Divorced adults exhibit more risk-taking behaviors (e.g., elevated rates of drugs and alcohol use/abuse). Particularly among those recently divorced, there is an increased risk for illness, likely due to poorer immune system functioning from the stress associated with divorce. (Kitson and Morgan 1990).

Relationship outcomes. Relationships and social networks are influenced in various ways by divorce. Divorced individuals generally experience more social isolation and have smaller social networks than do married individuals. This is explained in terms of them having less in common with married friends following divorce. Moreover, friendships can become divided between the couple like other the marital assets, as friends may choose sides.

In countries where divorce is still stigmatized, social isolation is more extreme. For example, in Japan divorced women experience discrimination in employment opportunities and future marital opportunities due to the impurity that divorce introduces into their family registry, and the effect of this impurity spills over to their children (Bryant 1992; Yuko 1998). Similarly, women in India are isolated following divorce, largely due to the principle of pativratya (i.e., that a woman should devote herself completely to her husband's needs, sacrificing her own if necessary). When a marriage ends, the assumption of fault resides with the wife. Also, family structure in India follows patriarchal lines, with many households consisting of a man, his wife, his sons, and the sons' wives and children. Following divorce, Indian men retain both their household and the support of their extended families, whereas Indian women leave the family household and become isolated from the entire family. Because re-marriage is not common in India, women are likely experience further social isolation (Amato 1994).

Coparental relationships also are affected by divorce, which has a significant impact on children. Although coparental interactions in marriage are generally cooperative and supportive (Jain, Belsky, and Crnic 1996), coparenting after divorce is likely to be less cooperative and more conflicted. Although the amount of conflict does not appear to be detrimental to adjustment, coparental relationships that are high in hostility are harmful to the parties and are detrimental to their postdivorce adjustment (Ahrons 1994; Buehler and Trotter 1990).

Most divorced individuals ultimately remarry and usually do so within four years (Coleman, Ganong, and Fine 2000). Remarriage rates (like divorce rates) are higher in the United States than anywhere else; however, the trends are similar cross-culturally. However, remarriages are less stable than first marriages, a finding that is generally attributed to the fact that those having experience with divorce are more likely to see divorce as a viable option in remarriage. Therefore, divorce appears to influence future marital relationships, making them less stable and more vulnerable to dissolution.

Positive outcomes. Most studies to date have looked for, and found, primarily negative outcomes from divorce. The few studies that have investigated the potential benefits of divorce show that, particularly for women, divorce can be a positive experience (Amato 2000). If the marriage was highly conflictual, ending the marriage can relieve stress in all family members. Also, an individual's sense of having successfully survived divorce is associated with increased self-confidence and efficacy, particularly for women.

Factors Influencing Adjustment

Numerous factors affect the ways in which couples adjust to divorce. These include both personal factors (those that reside within or are inherent to individuals) and contextual factors (those that reside outside individuals).

Personal factors. Several personal characteristics influence adjustment to divorce, such as demographic characteristics (i.e., age, education level, employment, and socioeconomic status). For example, some studies found that older individuals have more difficulty adjusting, due to their limited postdivorce options (e.g., employment, remarriage) (Kitson and Morgan 1990). Other studies found better adjustment among older divorced individuals, because they had fewer coparenting issues and conflicts due to children being older. Higher education, higher socioeconomic status, and being employed are consistently associated with better postdivorce adjustment among adults. It is likely that employment contributes positively to adjustment because more sources of social support are available and less economic hardship is experienced.

Individuals' levels of preseparation psychological functioning also affect divorce adjustment (Hetherington, Law, and O'Connor 1997; Tschann, Johnston, and Wallerstein 1989). Adults who have better coping skills and higher levels of emotional stability and psychological functioning before the divorce are generally more well-adjusted afterwards. Individuals who have a higher sense of self-mastery and self-esteem also experience higher levels of well-being following divorce.

Whether the individual initiated the divorce is another factor affecting adjustment. Spouses typically do not emotionally leave the marriage simultaneously and, therefore, may experience different trajectories in their adjustment. The person who initiates the divorce often mourns the loss of the marriage before the legal divorce takes place; however, noninitiators can experience surprise when the request for a divorce surfaces, and they then begin to consider the end of the marriage—when the initiator is already on the road to recovery.

Similarly, individuals' beliefs about divorce can affect their postdivorce adjustment. Those with more nontraditional views about marriage and who look at divorce more favorably exhibit better adjustment than do those who hold more traditional views about marriage and believe that divorce is unacceptable.

The degree of attachment to the former spouse also can affect adjustment. Research shows that cooperative postdivorce relationships are both possible and healthy for the couple, and particularly for parents (Ahrons 1994). However, when one or both spouses remain preoccupied with their former spouse (with feelings of either love or hate), postdivorce adjustment is hindered. It is interesting to note that Carol Masheter (1997) found that unhealthy (preoccupied) postdivorce attachment was more important to postdivorce wellbeing than was the amount of hostility in the post-divorce relationship.

Contextual factors. There are a number of contextual factors that affect postdivorce adjustment, such as the amount of social support both perceived and received by divorced individuals. Those who are less socially involved and more socially isolated following divorce generally have a more difficult time adjusting. Some research has proposed that the benefit of social involvement stems from the link between social involvement and attachment to the former spouse (Tschann, Johnston, and Wallerstein 1989). Higher levels of social involvement generally are associated with lessened attachment to the former spouse, and as noted, less attachment facilitates healthy postdivorce adjustment. However, Wang and Amato (2000) suggested that some social support comes with a price, including feelings of guilt, dependence on others, or criticism from the giver of the support, particularly if the support comes from kin. The differing influences of support are found in studies of other countries as well, as Frode Thuen and O. J. Eikeland (1998) found similar results among Norwegian divorced couples.

The most influential form of social support comes in the form of new relationships. Research consistently shows that new romantic relationships, both dating relationships and remarriages, are associated with better postdivorce adjustment for both men and women (Hetherington, Law, and O'Connor 1997).

Children, especially when older, also can serve as sources of social support for divorcing parents. This is particularly true of women, because they commonly retain custody of children. However, children also can be a source of postdivorce stress, as the added complications of maintaining the co-parental relationship can result in stress for the divorcing parents. Further, reduced contact and influence by noncustodial parents (usually fathers) can be a source of stress for custodial parents, as the latter parent believes that they must go it alone (Arendell 1995). For noncustodial fathers, reduced contact is associated with higher levels of depression and poorer postdivorce adjustment.Cultural factors. Adjustment is affected by the amount of stigma associated with divorce, the opportunities available (socially and economically) for divorced individuals, and differing legal contexts. As noted, divorce is associated with more social stigma in certain countries (e.g., India, Japan) and social opportunities in such countries generally are more limited. Divorced women in India have difficulty finding other single mothers with whom to develop a support network. They generally are reluctant to seek friendships with Indian men out of a concern that their efforts at friendship might be misinterpreted; employment and remarriage rates for Indian women are lower than those of U.S. women. Divorced individuals (particularly women) who reside in countries where divorce is less common and more stigmatized generally fare worse than individuals residing in countries where divorce is more common and less stigmatized (e.g., the United States).

The differing legal contexts of divorce can be influential to adult adjustment. Mark Fine and David Fine (1994) noted that most countries in Western Europe (with the exception of Ireland, which did not allow divorce until 2000) have moved from fault-based, punitive divorce laws to no-fault divorce laws, making divorces less painful to obtain. Such changes have had ramifications for divorce outcomes, most notably financial settlements. Since the 1960s, property settlements have become more egalitarian and awards of alimony have dramatically decreased, with the goal being to promote self-sufficiency for both divorcing spouses. For example, France has a system in which spousal support is rarely ordered; however, in the few rare cases that support is granted, a lump-sum payment is made at the time of the divorce, so continuing contact (and presumably, continuing conflict) between former spouses is minimized. Sweden has adopted an even more extreme view of postdivorce self-sufficiency, virtually eliminating spousal support altogether and declaring pensions to be individual property and therefore not divisible in the divorce settlement.

Although cross-culturally property settlements have become more egalitarian, in Australia these property settlements are largely determined by the future needs of the children. The future needs of spouses typically are not considered, and settlements also ignore any nonfinancial contributions of either party (e.g., stay-at-home mothers) when dividing marital assets (Sheehan and Hughes 2000). Similar neglect of nonfinancial investments during marriage occurs in Tanzania, where legal decisions through the 1980s predominantly have held that domestic contributions should not be considered in the division of marital property (Mtengeti-Migiro 1990). Thus, legal practices often ignore the contributions of women to marriage, reducing their post-divorce awards. Yet, the prevailing mood has been one of promoting self-sufficiency following divorce. This contradiction between behavior and mood, in turn, can result in a more difficult adjustment process, particularly for women.

Methodological Issues in Divorce Research

To date, most research regarding divorce and its impact on adults has assumed a deficit perspective— divorce is bad and has a negative effect on families. This perspective is reflected in the questions asked, the outcomes investigated, results showing negative outcomes, and the interpretation of these results. As noted, cross-cultural studies that investigate the potentially positive effects of divorce find that divorce can increase self-confidence, self-efficacy, well-being, and relief from a bad marriage for some. Therefore, future research should aim to further explore the range of influences of divorce on adults.

Because there is wide variation among divorced individuals in their postdivorce adjustment, simple comparisons between divorced and nondivorced individuals should be undertaken with caution. Just as divorce is best conceptualized as a process, adjustment to divorce also is a process, and studies show that the amount of time since divorce affects adjustment. However, many studies fail to examine time, ignoring the heterogeneity of the adjustment of divorced couples. Future research should investigate the multiple factors that aid or hinder adjustment, and should consider variations in the trajectory of the adjustment process among divorcing couples.

Despite variations in the structure and function of families in different countries, divorce is experienced by an increasing number of families. Data from the National Center for Health Statistics indicate that the annual number of divorces in the United States alone has climbed from 158,000 in 1921 to 1,163,000 in 1997, an increase of more than 700 percent (Norton and Miller 1992; MonthlyVital Statistics 1999). In addition, it should be noted that the latter figure underestimated of the actual number of divorces in the United States, as it failed to include divorce figures from all fifty states. Given the magnitude of its occurrence, divorce and its impact on divorcing couples continues to be an area worthy of investigation. Because of the policy and political implications, greater care is warranted in examining the complexity inherent in this process.

See also:Divorce: Effects on Children; Divorce: Effects on Parents; Divorce Mediation; Family Law; Grief, Loss, and Bereavement; Later Life Families; Loneliness; Marital Quality; Relationship Dissolution; Stress

Bibliography

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kari henley kay pasley

EFFECTS ON PARENTS

Half of the parents sixty years and older with ever-married children have experienced a child's divorce, thus divorce is a common event for a large proportion of people in middle age and old age (Spitze et al. 1994). Nevertheless, studies of divorce's effects upon parents has been overshadowed by the large literature on its effects upon children of the divorcing parents. When studies of the parents of divorced individuals are reported, parents are usually depicted in the context of being a grandparent, a role that is derived from and regulated by their child. This research concentrates upon the parents and adult children who have minor children. Whereas most research on the effects of divorce focuses on the adaptation of children of divorce, there has been increasing interest in the effects an adult child's divorce may have on members of the extended family.

Research Perspectives

The effects of divorce on parents are most frequently studied from a resource perspective by focusing on the exchanges taking place between parents and their divorcing children (Spitze et al. 1994). The studies are based upon the assumption that as children's marriages dissolve, they will turn to their parents for help (Johnson 1988a). An alternate situation may occur, however, particularly for older parents who are in need of help. A child going through a divorce may not be readily available to offer support to them because of the demands and stressors of the divorce process.

Other researchers maintain that conceptions of continuity provide an alternative but less common perspective on the adult children and their parents (Rossi and Rossi 1990). This focus assumes that divorce has no discernable effects on the relationship between the adult child and his or her parents. Advocates of this perspective propose that there may be some changes in the level of contacts and supports, but there is no evidence of changes in the level of closeness and contact (Umberson 1992).

When minor children are present, the continuity perspective is difficult to sustain as marriages dissolve. One spouse, usually the husband, leaves the household, and in the process, the quality of parenting changes as one parent is performing the role previously performed by two people. This situation can have major repercussions not only on the former nuclear family but also on grandparents and the wider kinship group. The custodial parent's extended family becomes the primary sphere of activity, as members of the ex-spouse's kinship group become more distant.

The Post-Divorce Parent-Child Relationship

Researchers on the relationship between parent and adult child have diverse views. On one hand, those in human development tend to take a positive view of intergenerational relationships by emphasizing the strong bonds of affection and solidarity between generations. In such an environment, when a child is going through the divorce process, a parent is a potential source of help and one who can ease the strains inherent during this major change in family life. On the other hand, other researchers (Hess and Waring 1978) speak of the inherent tensions and constraints between parent and adult child in normal times which may become magnified during the divorce process. The contradictory research findings between love and attachment versus tensions and conflict may reflect the major changes occurring during the divorce process and the reorganization of a child's family.

The divorce of a child can be a major event (in terms of stress) not only for divorcing partners, but also their parents, particularly if grandchildren are present. These major changes occur during the divorce process in a social limbo in which there are few guidelines on how to behave: even whether one should act pleased or relieved. The cultural context adds to the relatively normless environment of the divorce process. Mainstream Western values endorse the rights of the individual to be independent and self-reliant. Although a child's independence is extolled, some form of dependence may develop as a divorcing child turns to parents for help. In keeping with the adult child's right to independence, parents usually adhere to the norm of noninterference in their child's life, a value stance that must be discarded as parents take a more active helping role in their child's household.

As the child's household becomes more public and subject to parental scrutiny, the greater the parents' involvement, the more they observe what is going on in what was once a private household (Johnson 1988a, 1988b). Thus, both parents and divorcing children are placed in an ambivalent situation. If minor children are involved, grandparents are expected to help. Although such demands are more often placed upon the maternal grandparents, most maternal and paternal grandparents resist assuming a parental role, yet they recognize their responsibility to help. A common theme often expressed is: "If I do some things for them, I may have to do it all. If I don't help, I may lose them." This parental reluctance has rarely been discussed in the literature. One exception is Karl Pillemer and Jill Suitor's (1991) article "Will I Ever Escape My Child's Problem?," one of the few reports on the underside of the parent-adult child relationship.

Parents' Responses to Children's Needs

Because of custody relationships, sons and daughters face markedly different situations that have repercussions on their relationship with parents. The parent-son relationship and the parent-daughter have markedly different functions. Because custody is generally granted to the mother, her parents are usually a major source of support. In the process, they have no problem gaining access to the grandchildren. These parents may have to extend not only financial assistance but also emotional support to compensate for the loss of one parent in the household (Johnson 1988b; Hamon 1995).

In contrast, men's parents usually must gain access to the grandchildren through a former daughter-in-law, to whom they are no longer legally related after a divorce (Johnson 1988b). Some paternal grandparents explicitly retain a strong relationship with a former daughter-in-law sometimes at the expense of their relationship with their son. If needed, paternal grandparents can also compensate for a son's deficiencies as a parent, or they may strengthen their son's attentiveness to his children.

Divorce is a dynamic series of events as households dissolve, affinal kin (relatives by marriage) are no longer related, and new kin are added with remarriage. The individuals involved must construct new roles, redefine relationships, and restructure their lives. The relationship between parents and children is particularly interesting, because children assume a new life style that may be at odds with their parents' values. Because most parents try to maintain a noninterfering stance, their child usually must take the initiative in seeking help. Most parents may be responsive to the needs of their child and grandchildren, but they resist having to act as a parent in terms of disciplining and fulfilling day-to-day instrumental care.

Intergenerational Exchanges

Age and gender are factors that influence the relationship between parent and adult child. In later life, those with adult children found that divorce had a sizable effect on the parent-child relationship in terms of relationship qualities and contact (Johnson 1988b). The negative effects were stronger between father and child than between mother and child. If divorced fathers shared a residence with their child, they were less likely to be depressed than the non-resident fathers (Shapiro and Lambert 1999; Schone and Pezzin 1999). The age of the ever-divorced father had negative effects on care-giving and economic ties between parent and child. Likewise, Teresa Cooney and Peter Uhlenberg's (1990) study showed that divorced men experienced long-term negative effects on the frequency of contact between older men and their children, and children were less likely to be considered as potential caregivers. The gender of the divorcing child has also been studied: for example, daughters received more help from their parents than sons (Johnson 1988a).

Divorce can affect kinship networks positively as both divorcing men and women rely on kin for practical aid. Males turn to kin in the early stages of the divorce process, whereas women seek long-term assistance. Leigh Leslie and Katherine Grady (1985) found that one year after a divorce, social networks of divorcing individuals become more homogeneous with increased numbers of supportive kin.

A qualitative study of fifty divorces in middle-class suburbs (Johnson 1988a, 1988b) found that the relationship between parent and child varied by the organizational emphasis during the structural reorganization of the post-divorce family networks. First, those divorcing parents, who placed an emphasis upon the privacy of an abbreviated nuclear family, were relatively remote from parents, and they were likely to remarry over a three-year period. Second, others emphasized the generational bond and the solidarity with their parents. They usually received support from parents. Third, those who remarried tended to form loose-knit networks that incorporated former relatives of divorce and remarriage. These respondents tended to maintain distant but cordial relationships with their parents.

Surrogate Parenting

Major strains on the parent-child relationship after divorce comes in those situations when these adult children are no longer able to perform the parent role. There has been heightened interest in a recent phenomenon of grandparents assuming the role of surrogate parents. Such arrangements are vulnerable, because of economic problems and difficulty accessing entitlements. A North Carolina survey of 25,000 households found that of the grandparents who were sole surrogate parents of grandchildren, 42 percent lived in poverty and another 15 percent were "near poor" (Shone and Pizzin 1999). Despite the interest in this family arrangement, demographers find that surrogate parenting is rare in the United States. For example, in ongoing research on 160 African-American families, no one was currently a surrogate parent at the time of the interview, and only a few had been in the past.

Conclusion

The research literature on divorce's effects on aging parents is not large, and most reports focus on supports between generations rather than relationship qualities and how they change over time. Nevertheless, the existing literature indicates that divorce is a stressful process that affects divorcing individuals and their children as well as their parents. The divorce process has a stressful beginning, but over a year's time, the situation—for most— stabilized: most parents provided assistance to children when needed; the stressors on the older people had diminished.

See also:Conflict: Parent-Child Relationships; Divorce: Effects on Children; Divorce: Effects on Couples; Divorce Mediation; Elders; In-Law Relationships; Intergenerational Relations; Grandparenthood; Grandparents' Rights; Grief, Loss, and Bereavement; Stress

Bibliography

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umberson, d. (1992). "relationships between adult children and their parents: psychological consequences for both generations." journal of marriage and the family 54:664–685.

colleen l. johnson

DIVORCE

Divorce is of sociological significance for several reasons. To begin, divorce rates are often seen as indicators of the health of the institution of marriage. When divorce rates rise or fall, many sociologists view these changes as indicating something about the overall quality of marriages or, alternatively, the stability of social arrangements more generally. Viewed from another perspective, divorce interests sociologists as one of several important transitions in the life course of individuals. The adults and children who experience divorce have been studied to understand both the causes and consequences. From this perspective, a divorce is as much an event in the biography of family members, as other life-course transitions (remarriage, childbirth, and retirement). The sociological interest in divorce also focuses on the social trends it is part of, figuring prominently in any sociological analysis of industrialization, poverty rates, educational attainment, strategies of conflict resolution, or law.

For sociologists, divorce may characterize an individual, a family, a region, a subgroup, a historical period, or an entire society. It may be studied as either the cause or consequence of other phenomena. Still, the overriding concern of almost all research on this topic has been the increase in divorce over time. Divorce is now almost as common as its absence in the lives of recently married couples. The National Center for Health Statistics estimates that 43 percent of marriages begun in the early 1990s will end in divorce (NCHS 1998), a significant decline from the estimates of 50 percent to 65 percent in the late 1980s (Martin and Bumpass 1989). The decline in divorce rates in the recent past is probably a result of the aging of the post-World War II Baby Boom generation who are no longer at high risk of divorce because of their age. It is also possible that American marriages are becoming somewhat more stable than they were a decade ago. Still, the fluctuations in divorce rates one decade to the next do not mask the more general trend for the past two centuries. Understanding the increase in divorce has been the larger sociological endeavor regardless of the particular perspective employed. A historical account of trends is necessary before considering contemporary issues associated with divorce.

A BRIEF HISTORICAL RECORD OF DIVORCE IN AMERICA

The Colonial Period. Divorce was not legal in any but the New England settlements. The Church of England allowed for legal separations (a mensa et thoro), but not for divorce. The New England Puritans who first landed at Plymouth in 1621, however, were disenchanted with this, as well as many other Anglican doctrines. Divorce was permitted on the grounds of adultery or seven-year desertion as early as 1639 in Plymouth. Other New England colonies followed similar guidelines. Divorce governed by rudimentary codified law was granted by legislative decree. Individual petitions for divorce were debated in colonial legislatures and were effected by bills to dissolve a particular marriage. Still, though legal, divorce was very rare. During the seventeenth century, there were fifty-four petitions for divorce in Massachusetts, of which forty-four were successful (Phillips 1988, p. 138). The middle colonies provided annulments or divorces for serious matrimonial offenses such as prolonged absence or bigamy. The southern colonies afforded no provisions for divorce whatsoever.

Post-Revolutionary War. Immediately after the Revolutionary War, without British legal impediments to divorce, the states began discussion of laws to govern divorce. In New England and the middle states, divorce became the province of state courts while in the more restrictive southern states it was more often a legislative matter. By the turn of the nineteenth century, almost all states had enacted some form of divorce law. And by the middle of the century, even southern states were operating within a judicial divorce system.

The shift to judicial divorce is significant. By removing divorce deliberations from legislatures, states were forced to establish grounds that justified a divorce. Such clauses reflected the prevailing sentiments governing normative marriage—they indicated what was expected of marriage at the time. And by investing judges with the authority to interpret and adjudicate, such changes significantly liberalized the availability of divorce. Northern and southern states permitted divorces for specific offenses such as adultery, desertion, bigamy, and increasingly with time, cruelty. In the newer frontier western states, grounds resembled those of the East plus "any other cause for which the court shall deem it proper that the divorce shall be granted" (Phillips 1988, p. 453).

Throughout the nineteenth century, there was a gradual liberalization of divorce laws in the United States and a corresponding increase in divorce as well. Where divorces totaled a few hundred at the beginning of the nineteenth century, the numbers grew exponentially as the century wore on; 7,380 divorces in 1860, 10,962 in 1870, 19,663 in 1880, 33,461 in 1890, and 55,751 in 1900 (U.S. Bureau of the Census 1975). These figures assume greater significance when growth in population is removed from them. Whereas the divorce rate (number of divorces per 1,000 marriages) was but 1.2 in 1869, it had climbed to 4.0 by 1900. In short, the increase in divorce outstripped the increase in population several times.

A number of factors have been identified as causes of such dramatic increases. In part, these can be described as social changes, which made marriage less essential. The growth of wage labor in the nineteenth century afforded women an alternative to economic dependence on a husband. In an economy dominated by individuals rather than families, marriage was simply less essential. Life as a single individual gradually lost its legal or social stigma (New England settlements had forbidden solitary dwelling while southern communities had taxed it heavily).

More important, however, were fundamental shifts in the meaning of marriage. Divorce codes reflected the growing belief that marriages should be imbued with heavy doses of affection and equality. Divorce grounds of cruelty or lack of support indicate that marriage was increasingly viewed as a partnership. Where a century earlier men had been granted greater discretion in their personal lives, latter nineteenth-century morality attacked such double standards. Men were not necessarily less culpable than women for their vices. Victorian morality stressed the highest standards of sexual behavior for both husbands and wives. Changing divorce codes coincided with the passage of laws restricting husbands' unilateral control over their wifes' property. The passage of married women's property acts throughout the nation in the latter nineteenth century acknowledged married women's claims to property brought to or acquired in marriage. By 1887, thirty-three states and the District of Columbia gave married women control over their property and earnings (Degler 1980, p. 332).

Divorce codes including omnibus grounds such as "cruelty" (which could justify a divorce from a drunkard husband, for example) may be viewed as reflecting a Victorian American belief that women were morally sensitive and fragile, and in need of protection (Phillips 1988, p. 500). More particularly, the growing use of offenses against the intimate and emotional aspects of marriage reflected a growing belief that such things constituted matrimonial essentials. If a failure of intimacy could justify the dissolution of a marriage, then intimacy may be viewed as a core expectation of marriage.

The Twentieth Century. The first half of the twentieth century was a continuation of trends established in the latter nineteenth century. Two world wars and the Great Depression interrupted gradually increasing divorce rates, however. During each war and during the Depression, divorce rates dropped. After each, rates soared before falling to levels somewhat higher than that which preceded these events. Sociological explanations for these trends focus on women's employment opportunities. Women's labor force participation permits the termination of intolerable unions. The separations, hastily timed marriages, and sexual misalliances characteristic of wartime were also undoubtedly factors in the post-war divorces rates. Further, the increases in divorce following these difficult times may be seen, in part, as a delayed reaction. Once the Depression or war was over, the reservoir of impending divorces broke. And finally, postwar optimism and affluence may have contributed to an unwillingness to sustain an unhappy marriage.

The second half of the century witnessed even more dramatic increases in divorce. With the exception of the peculiar 1950s (for an explanation of this anomaly, see Cherlin 1992), the trend for the second half of the 1900s was a regular and exponential growth in divorce until around 1980, at which point the increase stopped.

Though specific explanations for the increase in divorces during the twentieth century vary, several themes may be noted. First, marriage has lost much of its central economic and social significance—especially for women. For example, divorce was undoubtedly inhibited by the fact that prior to the twentieth century, custody of children was uniformly awarded to fathers (since they were legally responsible for financial support). With the acceptance of Freudian ideas of psychosexual development and similar ideas about intellectual and cognitive growth, the so-called Tender Years Doctrine became accepted practice in courts during the early 1900s which then awarded custody to mothers as regularly as they had once done to fathers. And as it became more commonplace, remarriage began to lose some of its stigma. All these changes made it possible for women to divorce their husbands if they wished. But why did so many wish to obtain divorces?

The simplest explanation is that more divorce is a consequence of higher expectations of marriage. More and more grounds for divorce are developed as there are higher and higher expectations for what a marriage should be. In the nineteenth century, drunkenness, cruelty, and failure to provide were added to more traditional grounds of adultery and desertion. In the early twentieth century, cruelty was continually redefined to include not only physical, but mental cruelty as well.

The post-war surges in divorce created sufficient numbers of divorced persons so that the practice lost much of its stigma. The increase in divorce becomes more understandable when the loss of stigma is considered alongside the increase in women's employment since the mid 1960s. When women are employed, there is less constraint on them to remain in a marriage. But there is also less constraint on their husbands who will not be required to support their employed exwives after a divorce.

Since 1970, divorce has been fundamentally redefined. No-fault divorce laws passed since the early 1970s have defined as unacceptable those marriages in which couples are "incompatible," have "irreconcilable differences" or in which the marriage is "irretrievably broken." Prior to the no-fault regime, divorces required proof of a fault (crime) on the part of one spouse. The court decided whether to grant the divorce. Divorce proceedings were intentionally adversarial. Today, the non-adversarial grounds for divorce are almost entirely based on the failures of emotional essentials. Emotional marital breakdown may have been a feature of large numbers of marriages in earlier historical periods. Only now, however, is such a situation viewed as solely sufficient grounds for terminating the marriage.

DIVORCE IN THE WEST

Any theory of divorce must be able to account for the broad similarities in historical (twentieth century) trends throughout the entire Western world. These similarities exist despite notable differences in national economies, forms of government, and the role of the church. The trends are well known. There was very little divorce until the end of the nineteenth century, a slow but constant growth in divorce rates through the first half of the twentieth century (interrupted by two world wars and an international economic depression), and significant increases in divorce rates since the 1960s. The twentieth century, in short, is when most significant changes in divorce rates occurred. And the changes noted in America were seen in most other Western nations.

Between World Wars I and II, there were widespread changes in divorce laws that reflected changing beliefs about matrimony and its essentials. The strains of war and the associated problems that produced more divorces made the practice more conspicuous and consequently more acceptable. There is no doubt one cause of divorce is divorce. When obscure, the practice was stigmatized and there was little to counter stereotypes associated with its practice. When divorce became more commonplace, it lost some of its stigma.

Social changes pertaining to women's roles are a large part of the story of divorce during the postwar era. One sign of these changes was the growth, throughout the West, of women's labor force participation. But the most conspicuous symbol of the changing role of women was the passage of suffrage legislation throughout the Western world. Before 1914, women were permitted to vote only in New Zealand, Australia, Finland, Norway, and eleven western U.S. states. In the United States, women were enfranchised in 1920. In Britain, Sweden, Germany, and many other European countries, suffrage passed soon after World War I.

Divorce laws, similarly, were altered between the wars in accordance with changing views of marriage and the role of women. The British Parliament enacted divorce reform in 1937 by significantly extending the grounds for divorce (including cruelty) and granting women new options for filing for divorce. Scotland reformed its divorce laws in 1938 by extending grounds for divorce to include failures of emotional essentials—cruelty and habitual drunkenness, for example. In 1930, the Canadian Parliament for the first time empowered judicial magistrates to grant divorce rather than requiring legislative decrees. And the Spanish divorce law of 1932 was the most liberal in contemporary Europe—providing divorce by mutual consent (Phillips 1988, p. 539). Even Nazi Germany permitted no-fault divorce by 1938 (though divorce law was aimed at increasing the number of Aryan children born).

Following World War II, divorce rates throughout the Western world stabilized after an initial increase. The low divorce rates, high fertility, and lower age at marriage that characterized all Western nations after World War II are trends that have not been adequately explained. Whether these trends reflected the consequences of war, the effects of having grown up during the worldwide depression, or a short-term rise in social conservatism is now debated. Regardless of the cause, the decade of the 1950s is universally regarded as a temporary aberration in otherwise long-term and continuous twentieth century trends. Not until the 1960s were there additional significant changes in divorce laws or divorce rates.

The 1960s were years of significant social change in almost all Western nations. The demographic consequences of high fertility during the 1950s became most apparent in the large and vocal youth movements challenging conventional sexual and marital norms, censorship, the war in Vietnam, and educational policies. Challenges to institutional authority were commonplace. Divorce laws were not immune to the general liberalization. "Between 1960 and 1986 divorce policy in almost all the countries of the West was either completely revised or substantially reformed" (Phillips 1988, p. 562). Most such reforms occurred in the late 1960s to the late 1970s. Unlike earlier divorce law reforms, those during the post-World War II era did not extend the grounds for divorce so much as they redefined the jurisdiction over it. The passage of no-fault divorce laws signaled a profound shift in the way divorce was to be handled.

Most significantly, divorce became the prerogative of the married couple with little involvement of the state. No-fault divorce laws do not require either spouse to be guilty of an offense. Instead, they focus on the breakdown of the emotional relationship between the spouses. These statutes typically require a period of time during which the spouses do not live together. Beyond that, evidence must be adduced to substantiate one or both spouses' claim that the marriage is irretrievably broken. The significance of no-fault divorce lies entirely in the fact that decisions about divorce are no longer the prerogative of the state or church but rather of the married couple.

The passage of no-fault divorce laws in the West is properly viewed as a response to changing behaviors and attitudes. Indeed, social science research has shown that divorce rates began to increase significantly prior to passage of such laws and did not change any more dramatically afterward (Stetson and Wright 1975).

The changes in divorce law and actual divorce behaviors in the West are a reflection of the redefinition of marriage. More vulnerable and fragile emotional bonds have replaced the economic constraints that once held spouses together. The availability of gainful employment for women makes marriage less essential and divorce more possible. Indeed, the significant changes in women's social positions and the corresponding changes in normative expectations (i.e., gender) have been the subject of significant sociological research. These changes are recognized as fundamentally altering almost all social institutions. Marriage is no exception.

The redefinition of marriage in the latter twentieth century throughout the West reflects the profound changes in relationships between men and women that have occurred. No longer an economic institution, marriage is now defined by its emotional significance. Love and companionship are not incidents of the institution. Rather, they are essentials. Meeting these high expectations may be difficult, but sustaining them is certainly more so.

Taken together, the changes in the second half of the twentieth century may be summarized as redefining the meaning of marriage. Children are not economic assets. Spouses are not economic necessities. Marriage is a conjugal arrangement where the primary emphasis is on the relationship between husband and wife. The reasons for divorce are direct consequences of the reasons for marriage. As one changes so does the other. Since it is more difficult to accomplish and sustain matrimonial essentials, it is easier to terminate the legal framework surrounding them. Divorce has become less costly (financially, legally, and reputationally) as marriage has become more so (in terms of the investments required to accomplish what is expected of it).

CORRELATES OF DIVORCE

Sociologists have documented a number of demographic and personal characteristics that correlate with the probability of divorce. These include early age at marriage, premarital births, premarital cohabitation, divorce from a previous marriage, and low educational attainments. Social class is inversely related to divorce, yet wives' employment significantly increases divorce probabilities (see Huber and Spitze 1988 for a review).

Half of all recent marriages began with cohabitation (unmarried couples living together) (Bumpass and Sweet 1989). Repeated national studies have found that married couples who cohabited (either with each other, or with others) before marrying have higher divorce rates than those who never cohabited (Nock 1995). The reason is still unclear. Research shows that cohabiting individuals are less committed to the idea of marriage or marital permanence. They are also less religious and tend to be drawn from lower social classes (both of which are associated with higher divorce rates) (Nock 1995). Cohabitation appears to foster (or reflect) a belief that problems in intimate relationships are solvable by ending the relationship. When such beliefs are carried into marriage, the result is higher divorce rates.

Race correlates with divorce—even after controls are imposed for socioeconomic correlates of race—with black individuals having divorce rates approximately twice those of whites. However, such large differences associated with race are recent in origin. Not until the late 1950s did significant differences in divorce, separation, and other marital statuses emerge between blacks and whites, even though a pattern of marginally higher marital disruption has been found among blacks for at least a century. Such findings suggest that the differences stem more from contemporary than historical circumstances. As Cherlin suggests, the recent changes in black Americans' family situations resemble those of other racial and ethnic groups, though they are more pronounced. The restructuring of the American economy, the decline in semi-skilled jobs, and the rise in service occupations has resulted in higher rates of black male unemployment or low wages, and better opportunities for black women. "Faced with difficult times economically, many blacks responded by drawing upon a model of social support that was in their cultural repertoire, a way of making it from day to day passed down by African Americans who came before them. This response relied heavily on extended kinship networks and deemphasized marriage" (Cherlin 1992, p. 113).

CONSEQUENCES OF DIVORCE

For Children. A central concern of much of the recent research on divorce is how children fare. Developmental psychologists describe five ways in which marital disruption may affect children's adjustment. First, some adults and some children are more vulnerable to the stress and strain of divorce. Personality characteristics, ethnicity, or age for example, may make some individuals more susceptible to negative outcomes. Second, the absence of one parent, per se, may affect children's adjustment to divorce. Boys, in particular, appear to benefit from the presence of a male adult. Third, the loss of income creates many indirect problems for children, including changes in residence, school, neighborhood, and peer networks. Fourth, divorce often diminishes the custodial parent's ability to provide supportive and appropriate parenting, especially if depression follows marital disruption. And finally, negative, conflictual, and dysfunctional family relationships between parents, parents and children, and siblings are probably the most damaging consequence of divorce for children. (Hetherington, Bridges, and Insabella 1998).

Longitudinal research has shown that children who experience divorce differ from others before the disruption occurs. Cherlin showed that children whose parents were still married, but who would later divorce, showed more behavior problems and did less well in school than children whose parents would remain married (Cherlin et al. 1991).

Even after such predisruption differences are considered, divorce takes a toll in the lives of children who experience it. Divorce significantly increases the chances that young people will leave their homes due to friction with a parent, increases the chances of premarital cohabitation, and increases the odds of premarital pregnancies or fatherhood (Cherlin, Kiernan, and Chase-Lansdale 1995). The effects of divorce in young adulthood include higher rates of unemployment and lower educational attainments. Divorce weakens young people's connections to their friends and neighbors due to higher rates of residential mobility (McLanahan and Sandefur 1994). Following divorce, many children are subjected to changes in residence, often to disadvantaged neighborhoods where peers have lower educational prospects. The lack of connections to others affects parents' ability to monitor their children. It also limits young people's knowledge about local employment opportunities.

The changed economic circumstances caused by divorce affects children in many indirect ways. The loss of available income may affect the quality of schools children attend if custodial parents move to poorer neighborhoods. The lack of income may limit children's opportunities for extracurricular activities (e.g., travel, or music lessons). The need for income often compels custodial parents to work more hours, reducing their ability to monitor children's after-school activities.

In their socioeconomic attainments, children who experienced their parents' divorce average one to two fewer years of educational attainment than children from intact homes (Krein and Beller 1988; Hetherington, Camara, and Featherman 1983). Such effects are found even after rigorous controls are imposed for such things as race, sex, years since the divorces, age at time of divorce, parental income, parental education, number of siblings, region of residence, educational materials in the home, or the number of years spent in the single-parent family. There are comparable effects of divorce on occupational prestige, income and earnings, and unemployment (Nock 1988).

White women who spent some childhood time in a single-parent family as a result of divorce are 53 percent more likely to have teenage marriages, 111 percent more likely to have teenage births, 164 percent more likely to have premarital births, and 92 percent more likely to experience marital disruptions than are daughters who grew up in two-parent families. The effects for black women are similar, though smaller. Controls for a wide range of background factors have little effect on the negative consequences of divorce. Further, remarriage does not remove these effects of divorce. And there is no difference between those who lived with their fathers and those who lived with their mothers after divorce. Experiencing parents' divorce has the same (statistical) consequences as being born to a never-married mother (McLanahan and Bumpass 1988; McLanahan and Sandefur 1994).

Such large and consistent negative effects have eluded simple explanation. Undoubtedly much of the divorce experience is associated with the altered family structure produced—in almost 90 percent of all cases a single-mother family—and the corresponding changes in family functioning. Such a structure is lacking in adult role models, in parental supervision, and in hierarchy. On this last dimension, research has shown that divorced women and their children are closer (less distinguished by generational distinctions) to one another than is true in intact families. Parent and child are drawn together more as peers, both struggling to keep the family going. The excessive demands on single parents force them to depend on their children in ways that parents in intact families do not, leading to a more reciprocal dependency relationship (Weiss 1975, 1976). Single mothers are ". . . likely to rely on their children for emotional support and assistance with the practical problems of daily life" (Hetherington, Camara, and Featherman 1983, p. 218). In matters of discipline, single mothers have been found to rely on restrictive (authoritarian as opposed to authoritative) disciplinary methods—restricting children's freedom and relying on negative sanctions—a pattern psychologists believe reflects a lack of authority on the part of the parent (Hetherington 1972). Whatever else it implies, the lack of generational boundaries means a less hierarchical family and less authoritative generational distinctions.

The institutional contexts within which achievement occurs, however, are decidedly hierarchical in nature. Education, the economy, and occupations are typically bureaucratic structures in which an individual is categorically subordinate to a superior—an arrangement Goffman described as an "eschelon authority structure" (1961, p. 42). The nuclear family has been described as producing in children the skills and attitudes necessary for competition within such eschelon authority relationships in capitalist production and family childrearing. "The hierarchical division of labor (in the economy) is merely reflected in family life" (Bowles and Gintis 1976, p. 144–147). The relative absence of clear subordinate-superordinate relationships in single-parent families has been argued to inadequately socialize children, or place them in a disadvantageous position when and if they find themselves in hierarchical organizations (Nock 1988).

For Adults. A wide range of psychological problems has been noted among divorcing and recently divorced adults. A divorce occasions changes in most every aspect of adult life; residence, friendship networks, economic situation, and parental roles. Marriage in America makes significant contributions to individual well-being. Thus, regardless of the quality of the marriage that ends, emotional distress is a near-universal experience for those who divorce (Weiss 1979). Anxiety, anger, and fear are dominant psychological themes immediately before and after divorce. At least for a year or two after divorce, men and women report psychosomatic symptoms of headaches, loss of appetite, overeating, drinking too much, trembling, smoking more, sleeping problems, and nervousness (Group for the Advancement of Psychiatry 1980).

The emotional problems occasioned by divorce are accompanied by major changes in economic situations, as well—especially for women. The vast majority of those involved in divorce experience a significant decline in their immediate standard of living. This problem is especially acute for women who—in almost 90 percent of cases—assume custody of children. Immediately after a divorce, women suffer an average 30 percent to 40 percent decline in their overall standards of living (Hoffman and Duncan 1988; Peterson 1989). Either in anticipation of or as a consequence of divorce, there is typically an increase in divorced women's labor force participation. Analyzing national longitudinal data, Peterson estimates that one year before the divorce decree (when most divorcing individuals are separated), women's average standard of living (total family income divided by the poverty threshold for a family of a particular size) is 70 percent of its level in the previous year. As a consequence of increased hours worked, the standard of living increases one year after divorce and by five or six years after divorce, "the standard of living of divorced women is about 85 percent of what it had been before separation" (1989, p. 48). Women who have not been employed during their marriages, however, are particularly hard-hit; the majority ending up in poverty.

Child support payments are not a solution to the economic problems created by divorce for two reasons. First, about one-quarter (24 percent) of women due child support receive none (39 percent of men awarded child support receive none). Another one-quarter receive less than the court-ordered amount. In 1991, the average amount of child support received by divorced mothers was $3,011 per year ($2,292 for men) (U.S. Bureau of the Census 1995). About 16.7 million, or 85 percent of the 19.8 million children in single-parent families in 1997 were living with the mother; 60 percent of whom were divorced (U.S. Bureau of the Census 1998a). Their median family income was $22,999 compared with $34,802 for those in single-father situations, and $51,681 for children in households where both parents were present (U.S. Bureau of the Census 1998a). Families headed by single mothers are the most likely to be in poverty, and represent 55 percent of all poor families. In 1997, a third (31.6 percent) of all single-mother families were in poverty compared to 5.2 percent of two-parent families (U.S. Bureau of the Census 1998b). Analyzing national longitudinal data, Duncan concluded that changes in family status—especially divorce and remarriage—are the most important cause of change in family economic well-being and poverty among women and children (1984).

Single-parent families in America have grown dramatically as a result of increasing divorce rates. And even though most divorced persons remarry, Bumpass has shown that the average duration of marital separation experienced by children under age 18 was 6.3 years and 7.5 years for whites and blacks respectively. In fact 38 percent of white and 73 percent of black children are still in a single-parent family 10 years after the marital disruption—a reflection of blacks' lower propensity to remarry and their longer intervals between divorce and remarriage (1984). The role of divorce in the formation of single-parent families differs by race. Among all single-parent white families, 25 percent are maintained by never-married mothers, 47 percent by divorced (or separated) mothers, 7 percent by never-married men, and 13 percent by divorced or separated men. Among black single-parent families, 59 percent are maintained by never-married women, 28 percent by divorced or separated women, 4 percent by never-married men, and only 3 percent by divorced or separated men. Divorce is the primary route to single-parenthood for white mothers, whereas out-of-wedlock childbearing is for black mothers (U.S. Bureau of the Census 1998c, Table 11; 1998d).

Families headed by single women with children are the poorest of all major demographic groups regardless of how poverty is measured. Combined with frequent changes in residence and in employment following divorce, children and mothers in such households experience significant instabilities—a fact reflected in the higher rates of mental health problems among such women (Garfinkel and McLanahan 1986, pp. 11–17).

CONCLUSION

High rates of remarriage following divorce clearly indicate that marital disruption does not signify a rejection of marriage. There is no evidence of widespread abandonment of conjugal life by Americans. Admittedly, marriage rates have dropped in recent years. However, such changes are best seen to be the result of higher educational attainments, occupational commitments, and lower fertility expectations; not a rejection of marriage per se. Rather, increasing divorce rates reflect the fact that marriage is increasingly evaluated as an entirely emotional relationship between two persons. Marital breakdown, or the failure of marriage to fulfill emotional expectations, has come increasingly to be a cause for divorce. Since the 1970s, our laws have explicitly recognized this as justification for terminating a marriage—the best evidence we have that love and emotional closeness are the sine qua non of modern American marriage. Contemporary divorce rates thus signal a growing unwillingness to tolerate an unsatisfying emotional conjugal relationship.

The consequences of divorce for children are difficult to disentangle from the predictable changes in household structure. Whether the long-term consequences are produced by the single-parent situation typically experienced for five to ten years, or from the other circumstances surrounding divorce is not clear. It is quite apparent, however, that divorce occasions significant instabilities in children's and mothers' lives.

Our knowledge about the consequences of divorce for individuals is limited at this time by the absence of controlled studies that compare the divorced to the nondivorced. Virtually all research done to date follows the lives of divorced individuals without comparing them to a comparable group of individuals who have not divorced. A related concern is whether the consequences of divorce reflect the experience itself, or whether they reflect various selection effects. That is, are people who divorce different from others to begin with? Are their experiences the results of their divorce, or of antecedent factors?

When almost half of all marriages are predicted to end in divorce, it is clear that marital disruption is a conspicuous feature of our family and kinship system. Divorce creates new varieties of kin not traditionally incorporated in our dominant institutions. The rights and obligations attached to such kinship positions as spouse of the noncustodial father are ambiguous—itself a source of problems. The social institution of the family is redefined as a consequence of divorce. Entering marriage, for example, is less commonly the beginning of adult responsibilities. Ending marriage is less commonly the consequence of death. Parents are not necessarily co-residents with their children. And new categories of "quasi" kin are invented to accommodate the complex connections among previously married spouses and their new spouses and children. In many ways, divorce itself has become a dominant institution in American society. It is, however, significantly less structured by consensual normative beliefs than the family institutions to which it is allied.

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Steven L. Nock Alison Burke

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

DIVORCE

A court decree that terminates a marriage; also known as marital dissolution.

A divorce decree establishes the new relations between the parties, including their duties and obligations relating to property that they own, support responsibilities of either or both of them, and provisions for any children.

When a marriage breaks up, divorce law provides legal solutions for issues that the husband and wife are unable to resolve through mutual cooperation. Historically, the most important question in a divorce case was whether the court should grant a divorce. When a divorce was granted, the resolution of continuing obligations was simple: The wife was awarded custody of any children, and the husband was required to support the wife and children.

Modern divorce laws have inverted the involvement of courts. The issue of whether a divorce should be granted is now generally decided by one or both of the spouses. Contemporary courts are more involved in determining the legal ramifications of the marriage breakup, such as spousal maintenance, child support, and child custody. Other legal issues relating to divorce include court jurisdiction, antenuptial and postnuptial agreements, and the right to obtain a divorce. State laws govern a wide range of divorce issues, but district, county, and family courts are given broad discretion in fixing legal obligations between the parties.

In early civilizations, marriage and marriage dissolution were considered private matters. Marriage and divorce were first placed under comprehensive state regulation in Rome during the reign of Augustus (27 b.c.–a.d. 14). As Christianity spread, governments came under religious control, and the Roman Catholic Church strictly forbade divorce. The only exception to this ban was if one of the parties had not converted to Christianity before the marriage.

During the 1500s, the Protestant Reformation movement in Europe rejected religious control over marriage and helped to move the matter of divorce from the church to the state. European courts granted divorces upon a showing of fault, such as adultery, cruelty, or desertion.

England struggled with the matter of divorce. From 1669 to 1850, only 229 divorces were granted in that country. Marriage and divorce were controlled by the Anglican Church, which, like the Roman Catholic Church, strictly forbade divorce. The Anglican Church allowed separations, but neither spouse was allowed to remarry while the other was still living.

The law of divorce in the American colonies varied according to the religious and social mores of the founding colonists. England insisted that its American colonies refrain from enacting legislation that contradicted the restrictive English laws, and a colonial divorce was not considered final until it had been approved by the English monarch. Despite these deterrents, a few northern colonies adopted laws allowing divorce in the 1650s.

Divorce law in the middle and northern colonies was often curious. Under one late-seventeenth-century Pennsylvania law, divorce seemed a mere afterthought: If a married man committed sodomy or bestiality, his punishment was castration, and "the injured wife shall have a divorce if required." In Connecticut, divorce was allowed on the grounds of adultery, desertion, and the husband's failure in his conjugal duties. In the Massachusetts Bay Colony, a woman was allowed to divorce her husband if the husband had committed adultery and another offense. A man could divorce if his wife committed adultery or the "cruel usage of the husband."

After the Revolutionary War, divorce law in the United States continued to develop regionally. The U.S. Constitution was silent as to divorce, leaving the matter to the states for regulation. For the next 150 years, state legislatures passed and maintained laws that granted divorce only upon a showing of fault on the part of a spouse. If a divorce were contested, the divorcing spouse would be required to establish, before a court, specific grounds for the action. If the court felt that the divorcing spouse had not proved the grounds alleged, it would be free to deny the petition for divorce.

The most common traditional grounds for divorce were cruelty, desertion, and adultery. Other grounds included nonsupport or neglect, alcoholism, drug addiction, insanity, criminal conviction, and voluntary separation. Fault-based divorce laws proliferated, but not without protest. In 1901, author james bryce was moved to remark that U.S. divorce laws were "the largest and the strangest, and perhaps the saddest, body of legislative experiments in the sphere of family law which free, self-governing communities have ever tried."

In 1933, New Mexico became the first state to allow divorce on the ground of incompatibility. This new ground reduced the need for divorcing spouses to show fault. In 1969, California became the first state to completely revise its divorce laws. The California Family Law Act of 1969 provided, in part, that only one of two grounds was necessary to obtain a divorce: irreconcilable differences that have caused the irremediable breakdown of the marriage, or incurable insanity (Cal. Civ. Code § D. 4, pt. 5 [West], repealed by Stat. 1992, ch. 162 [A.B. 2650], § 3 [operative Jan. 1, 1994]). In divorce proceedings, testimony or other evidence of specific acts of misconduct were excluded. The one exception to this rule was where the court was required to award child custody. In such a case, serious misconduct on the part of one parent would be relevant.

California's was the first comprehensive "no-fault" divorce law, and it inspired a nationwide debate over divorce reform. Supporters of no-fault divorce noted that there were numerous problems with fault-based divorce. Fault-based divorce was an odious event that destroyed friendships. It also encouraged spouses to fabricate one of the grounds for divorce required under statute. No-fault divorce, conversely, recognized that a marriage breakdown might not be the result of one spouse's misconduct. No-fault divorce laws avoided much of the acrimony that plagued fault-based divorce laws. They also simplified the divorce process and made it more consistent nationwide, thus obviating the need for desperate couples to cross state lines in search of simpler divorce laws.

In 1970, the Commissioners on Uniform State Laws prepared a Uniform Marriage and Divorce Act, which provides for no-fault divorce if a court finds that the marriage is "irretrievably broken" (U.L.A., Uniform Marriage and Divorce Act §§ 101 et seq.). Such a finding requires little more than the desire of one spouse to end the marriage. Many state legislatures adopted the law, and by the end of the 1970s, nearly every state legislature had enacted laws allowing no-fault divorce, or divorce after a specified period of separation. Some states replaced all traditional grounds with a single no-fault provision. Other states added the ground of irreconcilable differences to existing statutes. In such states, a divorce petitioner remains free to file for divorce under traditional grounds.

Most states allow the filing of a divorce petition at any time, unless the petitioner has not been a resident of the state for a specified period of time. Some states require a waiting period for their residents. The waiting period can range from six weeks to two or three years.

Illinois and South Dakota maintain the strictest divorce laws. In Illinois, a marriage may be dissolved without regard to fault where three conditions exist: the parties have lived apart for a continuous period of two years; irreconcilable differences have caused the irretrievable breakdown of the marriage; and efforts at reconciliation would be impracticable and not in the best interests of the family (Ill. Rev. Stat. ch. 750 I.L.C.S. § 5/401(a)(2)). In South Dakota, irreconcilable differences are a valid ground for divorce, which suggests some measure of fault blindness (S.D. Codified Laws Ann. § 25:4-2). However, irreconcilable differences exist only when the court determines that there are "substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved" (§ 25:4-17.1).

In Minnesota, the statute covering dissolution of marriage reads like a primer on no-fault divorce. Minnesota Statutes Annotated, Section 518.05, defines dissolution as "the termination of the marital relationship between a husband and wife" and concludes that a divorce "shall be granted by a county or district court when the court finds there has been an irretrievable breakdown of the marriage relationship." "Irretrievable breakdown" is left undefined in the statute. In Texas, the no-fault statute is titled "Insupportability." This law provides that on petition by either party, "a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities" that destroys the purpose of marriage and renders reconciliation improbable (Tex. Fam. Code Ann. § 3.01 [West]).

No-fault is not without its detractors. Some critics argue that strict, no-fault divorce can provide a cover for serious marital misconduct. By refusing to examine the marital conduct of parties in setting future obligations, some states prevent spouses, usually impoverished wives, from exposing and receiving redress for tortious or criminal conduct. In response to this problem, the vast majority of states have abolished statutes that prevent one spouse from suing the other. However, tort claims for marital misconduct are often treated with suspicion, and juries are seldom eager to settle marital discord. A marital tort claim is also subject to business judgment: If the case does not appear cost-effective, an attorney might be reluctant to accept it.

Fault has survived in some aspects of divorce proceedings. It was once relevant to a decree of divorce and irrelevant to such matters as child custody and property divisions. Under current trends, marital misconduct is irrelevant to the divorce itself, but it may be relevant to related matters such as child custody, child support and visitation rights, spousal maintenance, and property distribution.

A recent movement in a small number of states has sought to reintroduce fault as an element in divorce proceedings. In 1997, Louisiana approved a covenant marriage law that is designed to provide an alternative to the traditional method for obtaining a marriage license. La. Rev. Stat. Ann. §§ 9:272-75, 9:307-09 (West Supp. 2003). Under the covenant marriage law, couples who wish to obtain a marriage license must first enter pre-marriage counseling, and then must provide an affidavit from a marriage counselor stating that they have completed this counseling. Once the couple is married, the covenant marriage does not differ from a traditional marriage until the potential dissolution of the marriage. Before partners to a covenant marriage may divorce, they must complete pre-divorce counseling and must provide an affidavit stating that the counseling has taken place. The statute is designed to make it more difficult to obtain a so-called "quickie" divorce.

The introduction of covenant marriage as an alternative to the traditional marriage agreement comes in the wake of several studies regarding the implications of divorce on children. Studies have shown that the economic standard of living for divorced women and children of a marriage decrease significantly after the divorce, while the standard of living for men increases. Likewise, other studies have shown that children of divorced parents are less likely to marry, have less education, and are more likely to abuse drugs and alcohol later in life.

In response to these and similar statistics, legislatures considered several means by which they could curb the climbing rate of divorce. Highly restrictive provisions on divorce, including the elimination of no-fault divorce, failed to pass any state legislature. Louisiana's covenant marriage law represents a compromise in that it leaves the decision to enter into such a marriage up to the couples. Several states in 1997 and 1998 considered enacting similar laws, but only Arizona and Arkansas have done so.

Covenant marriage laws also do not appear popular with couples in the three states that have adopted such laws. According to an article in the New York Times, only three percent of couples in Louisiana and Arizona have chosen to pursue this type of marital agreement, and studies show that tougher divorce laws have failed to gain popularity in those states. Moreover, several commentators have noted that the divorce rate in Louisiana and Arizona is not likely to decrease even with these laws in place.

Other states that have not enacted covenant marriage laws have considered other methods to discourage divorce. Several states have included provisions that encourage couples to seek pre-marital counseling before entering into the marriage. Unlike the covenant marriage laws, these provisions do not mandate such counseling, and they leave the decision to pursue counseling to the individual couples. The various statutes provide a number of incentives for seeking counseling, including, for example, reduction in the cost for a marriage license upon completion of counseling.

Historically, custody of the children of divorcing parents was awarded to the mother. Today, courts exercise their discretion in awarding custody, considering all relevant factors, including marital misconduct, to determine the children's best interests. Many parents are able to reach settlements on custody and visitation through mediation. Joint custody is a popular option among conciliatory spouses. Child custody is, however, a frequent battleground for less-than-conciliatory spouses.

In determining child-support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty. However, for pre-school children, the primary caretaker may not be obligated to obtain employment; in such cases, caretaking may be regarded as being in lieu of financial contribution.

All states have enacted some form of the Reciprocal Enforcement of Support Act, a uniform law designed to facilitate the interstate enforcement of support obligations by spouses and parents (U.L.A., Uniform Interstate Family Support Act of 1992). Such statutes prevent a nonsupporting spouse or parent from escaping obligations by moving to a different state. State laws also make nonsupport of a spouse or child a criminal offense, and uniform laws now give states the power to detain and surrender individuals who are wanted for criminal nonsupport in another state.

Property distribution is frequently contested in modern divorce proceedings. Commonly disputed property includes real estate, personal property, cash savings, stocks, bonds, savings

plans, and retirement benefits. The statutes that govern property division vary by state, but they generally can be grouped into two types: equitable distribution and community property. Most states follow the equitable-distribution method. Generally, this method provides that courts divide a divorcing couple's assets in a fair and equitable manner, given the particular circumstances of the case.

Some equitable-distribution states look to the conduct of the parties and permit findings of marital fault to affect property distribution. New Hampshire, Rhode Island, South Carolina, and Vermont have statutes that explicitly include both economic and marital misconduct as factors in the disposition of property. Connecticut, Florida, Maryland, Massachusetts, Missouri, Virginia, and Wyoming all consider marital conduct in property distribution. In Florida and Virginia, only fault relating to economic welfare is relevant in property distribution. Alaska, Kentucky, Minnesota, Montana, and Wisconsin expressly exclude marital misconduct from consideration in the disposition of marital property.

Equitable-distribution states generally give the court considerable discretion as to the division of property between the parties. The courts consider not only the joint assets held by the parties, but also separate assets that the parties either brought with them into the marriage or that they inherited or received as gifts during the marriage. Generally, if the separate property is kept separate during the marriage, and not commingled with joint assets like a joint bank account, then the court will recognize that it belongs separately to the individual spouse, and they will not divide it along with the marital assets. A minority of states, however, support the idea that all separate property of the parties becomes joint marital property upon marriage.

As for the division of marital assets, equitable-distribution states look to the monetary and nonmonetary contributions that each spouse made to the marriage. If one party made a greater contribution, the court may grant that party a greater share of the joint assets. Some states do not consider a professional degree earned by one spouse during the marriage to be a joint asset, but do acknowledge any financial support contributed by the other spouse, and they let that be reflected in the property distribution. Other states do consider a professional degree or license to be a joint marital asset and have devised various ways to distribute it or its benefits.

States that follow community-property laws provide that nearly all of the property that has been acquired during the marriage belongs to the marital "community," such that the husband and wife each have a one-half interest in it upon death or divorce. It is presumed that all property that has been acquired during the marriage by either spouse, including earned income, belongs to the community unless proved otherwise. Exceptions are made for property received as a gift or through inheritance, and for the property that each party brought into the marriage. Those types of property are considered separate and not part of the community. Upon divorce, each party keeps his or her own separate property, as well as half of the community property. True community property systems exist in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. Other states, such as Wisconsin, have adopted variations of the community-property laws.

alimony, or spousal maintenance, is the financial support that one spouse provides to the other after divorce. It is separate from, and in addition to, the division of marital property. It can be either temporary or permanent. Its use originally arose from the common-law right of a wife to receive support from her husband. Under contemporary law, men and women are eligible for spousal maintenance. Factors that are relevant to an order of maintenance include the age and marketable skills of the intended recipient, the length of the marriage, and the income of both spouses.

Maintenance is most often used to provide temporary support to a spouse who was financially dependent on the other during the marriage. Temporary maintenance is designed to provide the necessary support for a spouse until he or she either remarries or becomes self-supporting. Many states allow courts to consider marital fault in determining whether, and how much, maintenance should be granted. These states include Connecticut, Georgia, Hawaii, Iowa, Kansas, Kentucky, Maine, Massachusetts, Missouri, Nebraska, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wisconsin.

Like the entire body of divorce law, the issue of maintenance differs from state to state. If a spouse is found to have caused the breakup of the marriage, Georgia, North Carolina, Virginia, and West Virginia allow a court to refuse maintenance, even if that spouse was financially dependent on the other. North Carolina requires a showing of the supporting spouse's fault before awarding maintenance. Illinois allows fault grounds for divorce but excludes consideration of fault in maintenance and property settlements. Florida offers only no-fault grounds for divorce but admits evidence of adultery in maintenance determinations.

An antenuptial agreement, or premarital agreement, is a contract between persons who plan to marry, concerning property rights upon divorce. A postnuptial agreement is a contract entered into by divorcing parties before they reach court. Traditionally, antenuptial agreements were discouraged by state legislatures and courts as being contrary to the public policy in favor of lifetime marriage. An antenuptial agreement is made under the assumption that the marriage may not last forever, which suggests that it facilitates divorce. No state expressly prohibits antenuptial agreements, but, as in any contract case, courts reserve the right to void any that it finds unconscionable or to have been made under duress.

State statutes that authorize antenuptial and postnuptial agreements usually require that the parties fulfill certain conditions. In Delaware, for example, a man and a woman may execute an antenuptial agreement in the presence of two witnesses at least ten days before their marriage. Such an agreement, if notarized, may be filed as a deed with the office of the recorder in any county of the state (Del. Code Ann. tit. 13, § 301). Both antenuptial and postnuptial contracts concerning real estate must be recorded in the registry of deeds where the land is situated (§ 302).

Jurisdiction over a divorce case is usually determined by residency. That is, a divorcing spouse is required to bring the divorce action in the state where he or she maintains a permanent home. States are obligated to acknowledge a divorce that was obtained in another state. This rule derives from the full faith and credit clause of the U.S. Constitution (art. IV, § 1), which requires states to recognize the valid laws and court orders of other states. However, if the divorce was originally granted by a court with no jurisdictional authority, a state is free to disregard it.

In a divorce proceeding where one spouse is not present (an ex parte proceeding), the divorce is given full recognition if the spouse received proper notice and the original divorce forum was the bona fide domicile of the divorcing spouse. However, a second state may reject the divorce decree if it finds that the divorce forum was improper.

State courts are not constitutionally required to recognize divorce judgments granted in foreign countries. A U.S. citizen who leaves the country to evade divorce laws will not be protected if the foreign divorce is subsequently challenged. However, where the foreign divorce court had valid jurisdiction over both parties, most U.S. courts will recognize the foreign court's decree.

The only way that an individual may obtain a divorce is through the state. Therefore, under the due process clause of the fourteenth amendment to the U.S. Constitution, a state must make divorce available to everyone. If a party seeking divorce cannot afford the court expenses, filing fees, and costs associated with the serving or publication of legal papers, the party may file for divorce free of charge. Most states offer mediation as an alternative to court appearance. Mediation is less expensive and less adversarial than appearing in public court.

In January 1994, the American Bar Association Standing Committee on the Delivery of Legal Services published a report entitled Responding to the Needs of the Self-Represented Divorce Litigant. The committee recognized that a growing number of persons are divorcing pro se, or without the benefit of an attorney. Some of these persons are pro se litigants by choice, but many want the assistance of an attorney and are unable to afford one. In response to this trend, the committee offered several ideas to the state bar associations and state legislatures, including the formation of simplified divorce pleadings and the passage of plainly worded statutes. The committee also endorsed the creation of courthouse day care for children of divorcing spouses, night-court divorce sessions, and workshop clinics that give instruction to pro se divorce litigants. Many such programs are currently operating at district, county, and family courts around the United States.

In the United States, divorce law consists of 51 different sets of conditions—one for each state and the District of Columbia. Each state holds dear its power to regulate domestic relations, and peculiar divorce laws abound. Nevertheless, divorce law in most states has evolved to recognize the difference between regulating the actual decision to divorce and regulating the practical ramifications of such a decision, such as property distribution, support obligations, and child custody. Most courts ignore marital fault in determining whether to grant a divorce, but many still consider it in setting future obligations between the parties. To determine the exact nature of the rights and duties relating to a divorce, one must consult the relevant statutes for the state in which the divorce is filed.

further readings

American Bar Association Standing Committee on the Delivery of Legal Services. 1994. "Responding to the Needs of the Self-Represented Divorce Litigant." Chicago: American Bar Association.

Boumil, Marcia M., et al. 1994. Law and Gender Bias. Littleton, Colo.: Rothman.

Mather, Lynn. 2003. "Changing Patterns of Legal Representation in Divorce: From Lawyers to Pro Se." Journal of Law and Society 30 (March).

Phillips, Roderick. 1991. Untying the Knot. Cambridge, England: Cambridge Univ. Press.

Wadlington, Walter. 1990. Domestic Relations: Cases and Materials. 2d ed. Westbury, N.Y.: Foundation Press.

Warle, Lynn D. 1994. "Divorce Violence and the No-Fault Divorce Culture." Utah Law Review (spring).

Woodhouse, Barbara Bennet. 1994. "Sex, Lies, and Dissipation: The Discourse of Fault in a No-Fault Era." Georgetown Law Journal 82.

cross-references

Annulment; Family Law; Premarital Agreement.