Marriage is a legal status and spouses must have the state's agreement to dissolve a marriage. Prerevolutionary divorce laws in the United States followed England's ecclesiastical courts, which viewed marriages as indissolvable. Annulment was a possibility in rare cases, while a "divorce from bed and board" allowed separation without dissolving the legal status of wives as chattel, or the duty of husbands to provide financially for their wives.
After 1776, a court-administered "fault" divorce system evolved. If a judge found that one spouse had committed dire offenses while the petitioning spouse remained "innocent," divorce was granted. If the wife was the innocent spouse, her right to financial support theoretically continued and could be satisfied through the award of alimony or by property division.
Adultery and desertion were the most frequent grounds for divorce. Some states were liberal, defining transgressions flexibly, such as Vermont's "intolerable severity" or Rhode Island's "gross misbehavior and wickedness." Court processes gave judges control, in contrast to the more restrictive and exclusive parliamentary divorce in Britain as well as legislative divorce, which was prevalent in the South well into the eighteenth century.
During the twentieth century, changing mores and a legal profession increasingly willing to ignore obvious fabrication of evidence eventually led to what has been termed a "dual system" of divorce. Laws officially remained strict, but collusion between spouses (often with the assistance of attorneys) made it easy to divorce. Widespread dissatisfaction with the disparity between the formal law and hypocritical tactics used in its interpretation prompted a wave of "no-fault" divorce reform beginning in the 1960s.
By 1985, every state had changed its divorce laws to reflect the no-fault philosophy: divorce was no one person's fault; it resulted from irreconcilable differences. The accepted wisdom among reformers was that an unhappy spouse should be able to sever marital ties and "start over." Many states retained their original laws, merely placing a no-fault option alongside the traditional grounds.
No-fault changes were accompanied for additional social reasons by a rapid increase in the rate of divorce. It more than doubled between the early 1960s and mid-1970s. The rate continues to hover around 50 percent for newly contracted unions. Some predict that three in five first marriages will end in divorce, with the rate for second marriages even higher.
Divorce reformers also turned their attention to property division, alimony, and child custody and support. They argued that fault in the conduct of the marriage should be irrelevant in determining what each spouse receives at divorce. The idea that each spouse made important (even if different) contributions to the marriage resulted in the metaphor of marriage as a "partnership." The notion of equality ushered in reforms such as presumptions that marital property should be divided equally regardless of who was financially responsible, the replacement of permanent alimony (viewed as demeaning and also condoning dependency) with temporary or "rehabilitative maintenance" for spouses who had to retool for market work, and vigorous arguments for "shared parenting."
Historically, fathers had the right to custody and control of their children. This right complemented the father's obligation to support and discipline the child and stemmed from the original assertion that wives and children were men's property. The father custody rule was attacked in the latter part of the nineteenth century by feminists and social welfare advocates who urged placing the child's interests above paternal privilege. Maternal custody became practical only when the system considered paternal financial obligations to be appropriately fulfilled through the institution of child support payments. The primary judicial inquiry as to custody thus became what was "in the best interest of the child."
Courts quickly evolved rules to assist in making the best-interest determination. Fit mothers were given custody of children under the age of seven or so and the "same-sex" preference dictated that preparation for adult roles mandated older boys went with their fathers while girls remained with mothers.
For most of this century, maternal custody has been the norm, with over 85 percent of children residing with their mothers after divorce. Patterns of division of labor within households typically made mothers the caretakers during the marriage and that pattern voluntarily continued after divorce. Even in the small percentage of cases where it is an initial issue, custody usually has not been litigated.
Negotiation and compromise are the predominant modes for resolving this and other issues arising from divorce. Formal rules affect this process, however, since rights and entitlements represent power within the context of bargaining. The rules also have a powerful symbolic content and are often the site of real contention.
In recent years, fathers' rights groups have sprung up to argue forcefully that men are discriminated against in the custody context. They blame maternal bias for such widespread paternal practices as the refusal to pay child support or to visit with children after divorce. The changes that have resulted from fathers' agitation have destabilized the system, raising custody issues in many more divorce cases.
Many practicing attorneys and judges believe that the acrimony inevitably associated with divorce has now been relocated from a determination of who was at fault to the issue of who is the better parent. Others worry that women will lose the economic gains they won from divorce law property reforms, since mothers will often trade alimony and child support and property entitlements to prevent the possibility of losing custody of their children.
Martha Albertson Fineman
See also
Families;
Marriage.
