Divorce I. Divorce Defined A. Description of Divorce 1. Divorce Meaning y Judicial declaration dissolving a marriage in whole or in part, esp.

one that releases the husband and wife from all matrimonial obligations. y Divorce (or the dissolution of marriage) is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. y Divorce or dissolution of marriage is a legal process in which a judge or other authority dissolves the bonds of matrimony existing between two persons, thus restoring them to the marital status of being single. A divorce does not declare a marriage null and void, as in an annulment, but rather declares that a fully consummated marriage is irretrievably broken and that it should be dissolved, allowing the parties to marry other individuals. 2. Divorce and the the Law y Divorce laws vary considerably around the world but in most countries it requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt. Where monogamy is law, divorce allows each former partner to marry another; where polygyny is legal, divorce allows the woman to marry another. y In some jurisdictions divorce does not require a party to claim fault of their partner that leads to the breakdown of marriage. But even in jurisdictions which have adopted the "no fault" principle in divorce proceedings, a court may still take into account the behaviour of the parties when dividing property, debts, evaluating custody, and support. y In most jurisdictions, a divorce must be certified by a court of law to become effective. The terms of the divorce are usually determined by the court, though they may take into account prenuptial agreements or postnuptial agreements, or simply ratify terms that the spouses may have agreed to privately. In the absence of agreement, a contested divorce may be stressful to the spouses and lead to expensive litigation. Less adversarial approaches to divorce settlements have recently emerged, such as mediation and collaborative divorce, which negotiate mutually acceptable resolution to conflicts. B. Divorce in Other Countries 1. Portugal y In Portugal, when the spouses agree to divorce and to the terms of the divorce, it can be certified by a non judiciary administrative entity, where also can be served an Electronic Divorce since March 2008. 2. Canada y The Canada Divorce Act recognizes divorce only on the ground of

breakdown of the marriage. Breakdown can only be established if one of three grounds hold: adultery, cruelty, and being separated for one year. Most divorces proceed on the basis of the spouses being separated for one year, even if there has been cruelty or adultery. This is because proving cruelty or adultery is expensive and time consuming. 3. France y

The French Civil code (modified on January 1, 2005), permits divorce for 4 different reasons; mutual consent (which comprises over 60% of all divorces); acceptance; separation of 2 years; and due to the 'fault' of one partner (accounting for most of the other 40%).

4. Ireland y

The largely Catholic population of the Republic of Ireland has tended to be averse to divorce. Divorce was prohibited by the 1937 Constitution. In 1986, the electorate rejected the possibility of allowing divorce in a referendum. Subsequent to a 1995 referendum, the Fifteenth Amendment repealed the prohibition of divorce, despite Church opposition. The new regulations came into effect in 1997, making divorce possible under certain circumstances. In comparison to many other countries, it is difficult to obtain a divorce in the Republic of Ireland. A couple must be separated for at least four of the preceding five years before they can obtain a divorce. It is sometimes possible to be considered separated while living under the same roof. Divorces obtained outside Ireland are recognised by the Republic only if the couple was living in that country; it is not therefore possible for a couple to travel abroad in order to obtain a divorce.

5. United States y Divorce in the United States is a matter of state rather than federal law. In recent years, however, more federal legislation has been enacted affecting the rights and responsibilities of divorcing spouses. For example, federal welfare reform mandated the creation of child support guidelines in all 50 states in the 1980s. ERISA includes provisions for the division of qualified retirement accounts between divorcing spouses. The IRS established rules on the deductibility of alimony, and federal bankruptcy laws prohibit discharging in bankruptcy of alimony and child support obligations. COBRA allows a divorced spouse to obtain and maintain health insurance. The laws of the state(s) of residence at the time of divorce govern, not those of the location where the couple was married. All states recognize divorces granted by any other state. All states impose a minimum time of residence, Nevada currently being the shortest at 6 weeks. C. Types of Divorce 1. No-Fault Divorce y Under a no-fault divorce system, divorce requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require "irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been destroyed by these differences is enough for granting a divorce. Courts will not

inquire into facts. A "yes" is enough, even if the other party vehemently says "no". The application can be made by either party or by both parties jointly. 2. At-Fault Divorce y Prior to the late 1960s, nearly all countries which permitted divorce also required proof by one party that the other party had committed an act incompatible to the marriage. This was termed "grounds" for divorce (popularly called "fault") and was the only way to terminate a marriage. Most jurisdictions around the world still require such proof of fault. In the United States, no-fault divorce is now available in all 50 states and the District of Columbia--New York, the last state to still require fault-based divorce, passed a bill in 2010 permitting no-fault divorce. y Fault-based divorces can be contested; evaluation of offenses may involve allegations of collusion of the parties (working together to get the divorce), or condonation (approving the offense), connivance (tricking someone into committing an offense), or provocation by the other party. Contested fault divorces can be expensive, and not usually practical as eventually most divorces are granted. Comparative rectitude is a doctrine used to determine which spouse is more at fault when both spouses are guilty of breaches. 3. Summary Divorce y A summary (or simple) divorce, available in some jurisdictions, is used when spouses meet certain eligibility requirements, or can agree on key issues beforehand. y Key factors: y Short marriage (less than 5 years) y No children (or, in some states, when the spouses have resolved custody and set child support payments for children of the marriage) y Minimal or no real property (no mortgage) y Marital property is under a threshold (around $35,000 not including vehicles) y Each spouse's personal property is under a threshold (typically the same as marital property) 4. Uncontested Divorce y It is estimated that upwards of 95% of divorces in the U.S. are "uncontested," because the two parties are able to come to an agreement (either with or without lawyers/mediators/collaborative counsel) about the property, children, and support issues. When the parties can agree and present the court with a fair and equitable agreement, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property and deal with the custody of their children. Though this may be necessary, the courts would prefer parties come to an agreement prior to entering court 5. Collaborative Divorce y Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or

divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support. 6. Electronic Divorce y Electronic divorce is a means that allows two persons married under certain jurisdictions, such as Portugal, to file an electronic request for a no-fault, collaborative divorce in a non-judiciary administrative entity. Specific cases, with no children, real property, alimony, or common address, can be decreed as summary within one hour 7. Mediated Divorce y Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party's attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Divorce mediators may be attorneys who have experience in divorce cases or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders II. Emotional Stages of Divorce A. Disillusionment of One Party (sometimes 1-2 years before verbalized) 1. Vague feelings y discontentment y arguments y stored resentments y breaches of trust 2. Problems are real but unacknowledged 3. Greater distance; lack of mutuality 4. Confidential, fantasy, consideration of pros and cons of divorce 5. Development of strategy for separation 6. Feelings y fear y denial y anxiety y guilt y love y anger y depression y grief B. Expressing Dissatisfaction (8-12 months before invoking legal process)

1. Expressing discontent or ambivalence to other party 2. Marital counseling, or 3. Possible honeymoon phase (one last try) 4. Feelings y relief (that it's out in the open) y tension y emotional roller coaster y guilt y anguish y doubt y grief C. Deciding to Divorce (6-12 months before invoking legal process) 1. Creating emotional distance (i.e. disparaging the other person/situation in order to leave it) 2. Seldom reversible (because it's been considered for awhile) 3. Likely for an affair to occur 4. Other person just begins Stage I (considering divorce) and feels denial, depressed, rejected, low self-esteem, anger 5. Both parties feel victimized by the other 6. Feelings y anger y resentment y sadness y guilt y anxiety for the family and the future y impatience with the other party y needy D. Acting on Decision (beginning the legal process) 1. Physical separation 2. Emotional separation (complicated by emotional flareups) 3. Creating redefinition (self orientation) 4. Going public with the decision 5. Setting the tone for the divorce process (getting legal advice and setting legal precedent: children, support, home) 6. Choosing sides and divided loyalties of friends and families 7. Usually when the children find out (they may feel responsible, behave in ways to make parents interact) 8. Feelings y traumatized y panic y fear y shame y guilt y blame y histrionics E. Growing Acceptance (during the legal process or after) 1. Adjustments y physical

y emotional 2. Accepting that the marriage wasn't happy or fulfilling 3. Regaining a sense of power and control, creating a plan for the future, creating a new identity, discovering new talents and resources 4. This is the best time to be in mediation: parties can look forward and plan for the future; moods can be more elevated (thrill of a second chance at life) F. New Beginnings (completing the legal process to four years after) 1. Parties have moved beyond the blame and anger to forgiveness, new respect, new roles 2. Experiences y insight y acceptance integrity

III. Pros and Cons of Divorce A. Pros

1. Freedom from Bad Marriages y Sometimes we get trapped in such toxic relationships that they not only hurt our self esteem but also make us lose our self confidence. Many people tend to get caught in marriages which become addictive that they dont even realize that they are been physically or emotionally abused. y Remaining in a bad abusive marriage not only causes stress, but even clouds your life with frustration, emptiness and despair. It can be depressing and make you feel drained out. 2. Effect in Kids y Partners sometimes stay in bad marriages for the sake of the kids. But this can be a terrible mistake on their part if there is abuse involved. By doing this parents generally put a mental burden on the children. Bringing up a child in an unhealthy environment where parents are always fighting and trying to put each other down is not a good example that you set for your kids. B. Cons 1. Effect in Kids y Most current divorces leave children worse off, educationally and financially, than they would have been if their parents stayed married, and a majority of divorces leave children psychologically worse off as well. Only a minority of divorces are taking place in families where children are likely to benefit in any way from their parents separation.