Legal Fictions: D-I-V-O-R-C-E

legal padLast week in the comments to the WWW Wednesday post, Brenda Clough  and Sherwood Smith got into a discussion on divorce in earlier times. Sherwood observed:

Divorce is all tied up with women’s rights.

Indeed it is, because while divorce means that a woman can legally leave a bad marriage, the changes in women’s rights and economic status were necessary to make leaving a practical alternative for more people. The two things go hand in hand.

In fact, one of the reasons behind the Women’s Temperance movement — which influenced the adoption of alcohol prohibition in the U.S. — was that women couldn’t get out of marriages to drunken husbands.

Up until the 20th century, women had few options for financial support other than marriage and divorce had social consequences as well as economic ones.

Even today, divorce remains economically problematic for poor people. If both spouses are working at minimum wage jobs, running two households instead of one may be prohibitively expensive.

Of course, these days, many couples do not get married in the first place, even when they’re having children. That, too, is often an economic decision. Some people don’t get married because they can’t afford to; they’re better off living with their parents even when raising children. In the case of more affluent people, some women decline to get married because they can afford to raise their children on their own.

No-fault divorce is now the norm in the U.S. and in a number of other countries in the world, including Australia, Canada, China, and Russia. This means that marriages can be resolved if one party testifies that there are irreconcilable differences. No one has to prove adultery or ill-treatment; they only have to state that they cannot get along with their partner.

While this doesn’t get rid of all ill-feeling in divorce – I have never yet seen a couple break up without both parties being emotional basket cases of one kind of another – it has apparently made a significant difference in the amount of violence that goes along with unhappy marriages. According to a Stanford Business School study (abstract — full article behind a paywall) cited on Wikipedia, no fault divorce led to a 30 percent decline in domestic violence and a 10 percent decline in the number of women murdered by spouses.

In the U.S., no fault divorce started in California in 1969 and now can be found in all 50 states and the District of Columbia. In Russia, it started after the Bolshevik Revolution – probably the earliest version of it.

As a writer, this means that if you want a plot that revolves around one spouse refusing to grant a divorce to the other, you should either set the story in the past or in a country that still requires some showing of fault or has other stringent requirements. These are most common in countries that are tied to particular religions. Some of those countries give men a great deal more leeway than women in obtaining divorces.

Of course, even with no-fault laws, there are still very messy divorces. People with lots of money will fight over that, sometimes raising issues of fault, sometimes just fighting over whether some of the resources have been hidden. And custody of minor children can still lead to bitter battles, despite such improvements as joint custody and mediation programs.

Texas, alone in the U.S. and possibly in the world, allows a jury trial on child custody. I tried one once – won it, too. Since both the parents were poor candidates for raising their six-year-old, it came down to a fight between the grown daughter of the mother (my client) and the parents of the father. I can tell you the whole experience was miserable for all concerned.

While I believe in the jury system, I’m not sure it’s a good idea in custody disputes, as it adds a greater level of stress to an already horrific experience. There are bad judges out there, but most do lean over backwards to make a decision in the best interest of the child.

I also lost an uncontested divorce once because the judge wasn’t sure we’d provided properly for the kids. We actually had a good agreement – which the judge later accepted – but our language didn’t conform to the traditional system. Divorce courts tend to be a little old-fashioned.

One of the things I learned during the few years I did divorces was that there were times when the only way to resolve the family conflict was to put it up to the court. I was once involved in a hearing in which the parties refused to agree to a division of the knick-knacks. After about an hour of negotiation, the other lawyer and I decided to put it before the judge, because neither of our clients was willing to be reasonable. It’s nice to try to come up with a negotiated settlement that both sides can live with, but it can be hard to get people who are feeling very emotional over the break up to see reason. Judges get paid to make decisions, even if it’s just about knick-knacks.

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Legal Fictions: D-I-V-O-R-C-E — 14 Comments

  1. “Some people don’t get married because they can’t afford to; they’re better off living with their parents even when raising children.”

    Time was you got married and stayed with your parents while raising children. Michael Flynn’s parents were living with his grandparents when he was a child.

  2. I once overheard (not deliberately, but I was sitting in a cafe and the couple in question was two feet from me) a conversation between a couple who were splitting up their property. I wasn’t clear that this was divorce or a less official break-up, but the rise and fall of tension, anger, attempts to be magnanimous, and falling into old routines, was riveting. To have to deal with this on a day-to-day job level must be exhausting.

  3. One question to ask is if divorce isn’t possible, what other options are there? How common is it to have a new partner that everybody knows about while you’re still legally married? To what degree do they become part of the greater household with a ‘friend of the family’ label?
    How easy is it to move to a different part of the country and ‘be’ unmarried/a widow under a new name when you arrive?

    (These are examples from friends’ families in 19th century Britain. Other paths undoubtedly existed.)

    • It’s probably a whole lot harder today than it was in the past. It would be interesting to know how common it was in the 19th Century. It shows up a lot in fiction and there are some major examples, but that doesn’t make it a common practice.

      • Too common, at least amongst the “lower orders” in colonial Australia 🙂 When a women moves in with another man and takes his name without marrying him, there’s no official record of it which means usually she “disappears” and it’s impossible to find out what happened to her. (Unless you’re starting with the later relationship/s or have oral/family history to work with.)

        I assume it’s more common amongst such women because, well, they’re not fitting society’s “norms” to start with (They drink. They fight. They (horror) work outside the home.) and there’s no property to deal with.

        • And that brings up the idea of “common law” marriage. Do they recognize that in Australia? In Texas, a couple qualifies as married under common law if they agree to be married and hold themselves out as married. And, of course, neither of them can be married to anyone else. Since the need to prove this generally happens when one partner is dead or incapacitated — not to mention when one partner wants to deny the existence of the marriage because they don’t want to share property — it can be hard to show agreement to marry.

          • They do, especially if you’re claiming a payment from the government. (Couples get paid less than two single people.)

            De facto relationships are recognised in regard to some matters of property, finance and legal matters. It varies from state to state and keeps changing so that’s as much as I know. Although some states now have civil union registration which gives some of the legal advantages of marriage without actually getting married.

  4. I’m writing a Victorian novel (or as close as I can get it) which I am loading with all these difficulties, plus a cherry on top. If anyone is deeply knowledgable about Victorian legal practice, email me!

  5. As late as the 1980s we had a judge in Oregon who considered adultery a worse crime than physical abuse. In one case he gave custody of the children to the ex-husband who was two weeks out of jail for assault and battery that left the victim crippled, all because the ex-wife moved in with a new boyfriend before the divorce was final. She’d filed for divorce based on physical abuse that put her and the oldest child in hospital several times.

    Fortunately protesters surrounded the court house six deep and the judge couldn’t enter without threat of physical harm. He retired two days later and the new judge gave the wife everything.

    This same judge was known to take on cases where he, the husband’s lawyer, and the husband all belonged to the same Elks Lodge. Not once in 30 years on the bench did he rule in favor of the wife.

    Things have changed a bit.