DIVORCE
A court decree that terminates a marriage; also known as marital dissolution.
A divorce decree establishes the new rela-
tions 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 pro-
vides 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 obliga-
tions 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. Contem-
porary 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, antenup-
tial 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 excep-
tion to this ban was if one of the parties had not
converted to Christianity before the marriage.
During the 1500s, the Protestant Reforma-
tion movement in Europe rejected religious con-
trol over marriage and helped to move the
matter of divorce from the church to the state.
European courts granted divorces upon a show-
ing of fault, such as ADULTERY, cruelty, or deser-
tion.
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 punish-
ment 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 con-
jugal 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 region-
ally. The U.S. Constitution was silent as to
divorce, leaving the matter to the states for regu-
lation. 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 divorc-
ing 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 incompatibil-
ity. This new ground reduced the need for
divorcing spouses to show fault. In 1969, Cali-
fornia 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: irrec-
