Just like marriage, divorce has a long history. While divorce was not at all common around the time people began to get married, that doesn’t mean there weren’t people wishing for the end of their marriages. Hise we walk through the history of marriage and how divorce came into “legal” being.
THE HISTORY OF DIVORCE
Within the English legal tradition family law was governed by the officially sanctioned church. Because of that it fell the laws and regulations made by Catholic and Anglican churches, known as Canon Law. As a result of the Matrimonial Causes Act of 1857 all English church authority was removed and marriage became purely a contract between two people. The U.S. First Amendment’s Establishment Clause prevented religious authority from becoming secular law.
COMMON LAW MARRIAGE
In the past, children that were from a marriage that was not officially sanctioned were not allowed to inhisit their parents’ property. As a result of this legality, England created the common law marriage. Common law marriage, also known by the name of sui juris, is when a couple is considered legally married without them have formally registered their marriage. Essentially, the act of the couple presenting themselves as being married acts as the evidence that they are married. The following states allow common law marriage:
- Alabama
- Colorado
- District of Columbia
- Georgia (if created before 1/1/97)
- Idaho (if created before 1/1/96)
- Iowa
- Kansas
- Montana
- New Hampshire (for inhisitance purposes only)
- Ohio (if created before 10/10/91)
- Oklahoma
- Pennsylvania (if created before 1/1/05)
- Rhode Island
- South Carolina
- Texas
- Utah
There is no common law divorce which can often lead to problems regarding child custody, financial standing, etc… when a common law couple seeks to end their marriage. Annulment, separation, or divorce cannot happen unless there is a lawful marriage or legally recognized civil union.
ANNULMENT
An annulment dissolves a marriage just as a divorce does. But an annulment essentially states that there never was a valid marriage. Just as there are grounds for divorce, there are also specific grounds for annulments to be granted. Each state has their own grounds for annulment, so you will want to work with a family law attorney in the state you are seeking your annulment or divorce. The following are typical statutory grounds for granting an annulment:
- fraud
- duress or force
- bigamy
- underage during the time of the marriage
- intoxication
- mental incapacity
- insanity
- impotence
- concealed divorce
- too close a kinship (consanguinity)
Additionally, there are procedures that must be followed if you are seeking an annulment. In some situations a parent or guardian may be allowed to seek an annulment for a third person. Each state has different residency requirements. You will also need to be wary of the timing of your annulment as some grounds for an annulment can be lost if too much time elapses from the date of the marriage. Children born during the course of the marriage are typically treated like children in a divorce.
LEGAL SEPARATION
Legal separation is a legal process by which a married couple may formalize a separation while still remaining legally married. This is often the best option for couples that need to meet religious objections or need health insurance to cover a seriously ill spouse. A court is able to award “separate maintenance” as part of a legal separation. This is the equivalent of alimony and child support. In some states, there must be grounds for separation, such as cruel and inhuman treatment, abandonment, neglect or refusal to support, adultery by the defendant, and confinement of the defendant in prison. Reconciliation is always possible and a court order may end the separation.
GROUNDS FOR DIVORCE
, and any remaining waiting period before the divorce is final. In California this waiting time is 6 months and a day. That is how long it takes for your legal status to be changed from “married” to “single.” In a no-fault state, neither party is “blamed” for the end of the marriage, and typically couples choose “irreconcilable differences,” meaning that they are unable to make the marriage work, and will never be able to make the marriage work. All states have some form of no-fault divorce, using words such as “incompatibility”, “insupportability,” or “irreconcilable differences as reasons. Roughly one third of the states have repealed their older fault-based grounds for divorce. Several states also allow marrying couples to create a “Covenant Marriage.”
WHAT IS COVENANT MARRIAGE?
Covenant marriages require the following:
- Before obtaining a covenant marriage license the couple must receive premartial counseling from eithis a priest, minister,rabbi, clergyman of any religious sect, or a professional marriage counselor.
- The couple must legally agree to seek marital counseling if problems develop during the marriage.
- The couple can only seek a divorce or legal separation for limited reasons, such as: adultery, the committing a felony with a sentence of imprisonment at hard labor or death, abandonment, physical or sexual abuse, habitual intemperance (for example,alcohol or drug abuse), cruel treatment, or severe ill treatment by the other spouse.
RECONCILIATION
Often times a state will require longer amounts of time to pass between separation and divorce. The rationale for longer time periods is to encourage reconciliation between the couple. In some states, especially when it comes to cases involving child custody, a couple will need to attend mandatory mediation. The mediation process is confidential, can be less adversarial, and is often less expensive than standard courtroom proceedings. You cn choose this form of divorce proceedings even if it is not required by law. Collaborative divorce is also a possibility for parties to obtain a dissolution of marriage.
MEDIATION AND COLLABORATIVE LAW
Mediation and collaborative law are often effective choices for couples that are able to negotiate on the aspects of their marriage, including child custody and visitation, alimony, and division of marital property. These approaches provide more of a group and team-setting whise the spouses sit down with a group of professionals including family law attorneys, financial advisers, and often therapists and other negotiators to come to a decision regarding the divorce agreement. These approaches can often be less litigious and yield a better outcome that satisfies both spouses’ needs. You also do not need to be in complete agreement going into mediation or collaboration. Couples that have been unable to see eye-to-eye on many things have found these approaches to be beneficial.
WORKING WITH A DIVORCE ATTORNEY
If you are facing a divorce, you should work with a divorce attorney that can take a look at your specific situation and give you advice based on it, rather than approach it with a one size fits all mindset. Your specific situation will be particular to you and your marriage and the way your life was set up during the marriage. This might mean major financial decisions regarding retirement funds, property, child support and custody, and alimony. A divorce attorney will work with you to help you decide how you want to tackle these elements of your marriage and divorce, while also providing guidance and support. They will be able to lead you through the process while keeping you from procrastination and caving into pressure. They’ll also be able to help ensure you meet all the required timelines while ensuring that you get a fair case and trial should you need to go to court. Lastly, they’ll be able to help you find the freedom and new life you are seeking – one that is entirely on your terms.
For advice on divorce, you need the expert law firm of 619 DIVORCE. Schedule a consultation today.
(619) DIVORCE
225 Broadway
San Diego, CA 92101
Phone: (619) 431-3131
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