If you are seeking to end your marriage, contact an experienced Bluffdale Utah divorce lawyer. Under Utah law, you can seek a divorce from your spouse on various grounds. The lawyer can advise you on the grounds you can seek a divorce.
There are, basically, two legal ways to end a marriage: divorce and annulment. Of course, there are also informal ways of ending a marriage. A man (less often a woman) can simply walk out into the night and never come back. This happens often enough; and it has a real impact on families. A couple that does not want to keep on living together can also decide, for whatever reason, to ask a court for a legal separation. In older sources, separation was often called “divorce from bed and board” (a mensa et thoro); and absolute divorce was called divorce “from the bonds of marriage” (a vinculis matrimonii). “Separation” is a better and less confusing term. A legally separated couple will live apart, still officially married, but often with the same kinds of arrangements a divorced couple might have, about custody, property division, and support for the dependent spouse.
Some couples separate, as a kind of prelude to divorce. They execute a separation agreement, to be incorporated into later divorce proceedings. How many couples enter into these contracts, without the looming shadow of divorce, is hard to say—probably not very many. Legal separations likely were never very common. Legal separation and annulment are substitutes for divorce— one quite feeble, the other quite powerful. Legal separations keep a thin version of a marriage alive. Annulments are hard to get (in theory). But if a marriage is annulled, both parties can remarry; indeed, this is usually the point of an annulment. Both annulments and legal separations appeal mostly to people with religious scruples against divorce—devout Catholics, very notably.
At the beginning of the twentieth century, every state in the union, with one exception (South Carolina), had some provision for absolute divorce. South Carolina had no divorce law in the nineteenth century, and, indeed, the South Carolina Constitution of 1895 provided that “Divorces from the bonds of matrimony shall not be allowed in this State” (Art XVII, section 3). Divorce did not arrive there until 1948.
During the century, the divorce laws of the various states differed considerably. There were “easy” states and “hard” states. The general shape of divorce law, at least officially, was much the same everywhere. To get a divorce, a person had to file a lawsuit in court. A good spouse filed suit against an (alleged) bad spouse. The plaintiff would claim that the defendant, the bad spouse, had done something wrong—something which gave plaintiff, the good spouse, valid “grounds” for divorce. In the tough states, the statutory list of “grounds” was short. In the easy states, the list was longer. The defendant was supposed to file an answer to the petition. At the trial, both sides could present evidence. In the end, the judge would decide whether or not the plaintiff had made her case. Or his case; though, in fact, most of the plaintiffs were women.
As of the 1930s, every state that recognized divorce at all listed adultery as one of the available grounds. Almost all of them added desertion and cruelty; and imprisonment or conviction of a crime; and some forty jurisdictions added drunkenness. Nonsupport was grounds in some fifteen states, drug addiction in six. Other grounds were more idiosyncratic; in Florida, “habitual indulgence by defendant in violent and ungovernable temper”; in Louisiana, public defamation of a spouse; in Illinois, infecting a wife with venereal disease; in New Hampshire, refusal to cohabit for three years. In Alabama, one grounds for divorce was “commission of the crime against nature, whether with mankind or beast, either before or after marriage.” In Tennessee in the 1930s, it was grounds for divorce, quite reasonably, if “either party has attempted the life of the other, by poison or any other means showing malice.” In New Hampshire, a divorce was available when either spouse “has joined any religious sect or society which professes to find the relation of husband and wife unlawful, and has refused to cohabit with the other for six months together.” This statute, which went back to the early nineteenth century, was aimed at the Shakers, an (obviously) small religious group, which did not believe in sexual intercourse.
Divorce laws and practices of course also bore the imprint of conventional gender roles. Wives were supposed to be chaste, loyal homemakers. Men were breadwinners, with stronger sexual appetites. In Kansas, and a number of other states, as of 1935, a husband was entitled to a divorce “when the wife at the time of marriage was pregnant by another than her husband.” Nothing was said about a woman’s right to divorce, if her groom had made some other woman pregnant. Under the Maryland Code, the husband was entitled to a divorce if, unknown to him, the woman, before the marriage, had committed “illicit carnal intercourse with another man.” There was no comparable stricture about men. Many statutes gave the wife, on the other hand, the right to a divorce if the husband, for no good reason, refused to support her; in New Mexico, for example, “Neglect on the part of the husband to support the wife, according to his means, station in life and ability” was grounds for divorce. Women, on the other hand, were not required to support their husbands.
Traditional morality peeps out of the pages of the statute books. In Texas, if a man seduced a woman, and then married her to escape prosecution for seduction or fornication, he had to stay married for three years before he could sue for divorce. An old Pennsylvania law, which lasted into the twentieth century, provided that an adulterer (male or female) could not marry “the person with whom the crime was committed during the life of the former wife or husband.”16 Everywhere, to get a divorce, the plaintiff herself had to be innocent, blameless, pure. This doctrine, called “recrimination,” meant that a woman who committed adultery could not divorce an adulterous husband if she had committed adultery herself, or vice versa. Under the doctrine called “condonation,” a plaintiff also lost her case if she forgave her husband, and slept with him after he confessed his adultery. Moreover, she had no case if he had colluded with her, agreed to “give” her a divorce, and agreed not to contest; in short, if the divorce case was a fraud. As we will see, none of this reflected the real, working law of divorce.
Cruelty was the grounds of choice in many states. In Ohio, in 1930, between July 1 and December 30, almost all of some 6,500 petitions for divorce alleged gross neglect of duty, or cruelty, or both. In San Mateo County, California, in the 1950s, an astonishing 95.1 percent of all petitions alleged “extreme cruelty.” The statutes defined cruelty in various ways. For example, the Oregon Code of 1930 spoke of “cruel and inhuman treatment, or personal indignities rendering life burdensome.” In California, cruelty was defined as “the wrongful infliction of grievous bodily injury or grievous mental suffering.” Over time, regardless of statutory language, courts expanded the definition to include mental or emotional cruelty. In many states, adultery was distinctly unpopular as a ground for divorce. Of course, this tells us nothing about the incidence of adultery in real life.
So much for the theory—the official law of divorce. What was the actual practice? The vast majority of divorces—perhaps 90 percent or more—were collusive and fraudulent, based on a kind of semi-legitimate perjury. In the typical case, the wife filed for divorce. The husband simply failed to respond; or in any case failed to contest. The formal official law, the law in the treatises, the law mouthed by high court judges, had absolutely no relationship to what was happening on the ground. At the level of trial courts, divorce was a matter of routine—courts simply acted as rubber stamps; couples by the thousands got their divorces; a messy system of lies and collusion was in effect; and judges, for the most part, buried their heads in the sand. In the rare contested cases, the formal law had some bite. The reported cases are all, of course, solely appellate cases. No one was likely to appeal from a consensual divorce, a collusive divorce, a divorce both parties wanted, or were at least willing to have.
Changing ideology, changing culture, and changing gender roles increased the demand for divorce. The divorce rate kept increasing in the United States—faster, indeed, than population. In 1929, there were 201,468 divorces, or, as one writer put it, about one every two minutes. From 1867 to that date, the population increased 300 percent, but the divorce rate rose by 2,000 percent. The divorce rate kept increasing in the twentieth century; there were, to be sure, ups and downs, but mostly ups. There was a bulge in divorces right after the Second World War; and a rapid rise again from the 1960s to the 1980s. In that decade, there were more than 5 divorces per 1,000 total population. After 1986, the divorce rate declined; in 2007, the rate was 3.6 per 1,000 total population. The marriage rate has also declined; and this decline, of course, has an impact on the rate of divorce. Couples who cohabit can end their relationship by packing a suitcase; no need to go to court.
Historically, many people—especially people in authority— tended to deplore divorce, and easy divorce in particular. But in the twentieth century, attitudes began to change. There were voices speaking out against the system. William N. Gemmill, a Municipal Court Judge in Chicago, in 1914 compared the “repeated assaults against divorce” to Don Quixote tilting against windmills. Some feminists, sociologists, and free thinkers agreed. It was useless to try to stem the flow of divorce suits. But the law on the books blocked the way to genuine reform. The law was stalemated. Catholic dogma refused to countenance divorce; Catholics were a powerful minority, and, in some states, close to a majority. Protestant churches accepted divorce, but only as a last resort and a necessary evil. An irresistible force (the demand for divorce) ran up against an immoveable object.
The living law, however, made nonsense of the official law. Divorce law, in practice, was a fraud, a charade, a lie. Official doctrines had no impact (or very little) on living law. Consider, for example, the doctrine of “recrimination,” which we mentioned before—the rule that when the pot calls the kettle black, the court should not grant a divorce. A wife who commits adultery cannot divorce an adulterous husband.
In 1915, Tennessee created the office of “divorce proctor,” with power to “investigate the charges” in divorce cases, for a fee of $5 per case. In Oregon, the District Attorney was supposed to see that there was no fraud or collusion in divorce cases, whether or not the defendant contested. In West Virginia, the duty of the “divorce commissioner”—a person of standing in his profession and of “good moral character”—was to investigate divorce suits, and take steps necessary to prevent “fraud and collusion in divorce cases.” One proctor, W. W. Wright, in Kansas City, supposedly reduced the divorce rate in that city by 40 percent. But this, if true, must have been very exceptional. For the most part, these officials accomplished nothing. Collusive, consensual cases continued to be the norm. The courts endlessly repeated the mantra that collusion was an evil, and that courts should not grant divorces if the case even smelled like collusion. But this was, basically, nothing but talk. In Illinois, for example, in a study published in the 1950s, Maxine Virtue (wonderful name) concluded that almost all divorce cases were collusive. In the typical case, the plaintiff, a woman, accused her husband of cruelty; he beat her, slapped her, abused her. Virtue noted the “remarkable” fact that “cruel spouses” in Chicago usually struck their wives “in the face exactly twice.” The wife’s mother, sister, or brother typically backed up this story. In Indiana, until the 1950s, judges were supposed to refer to prosecutors all cases where the defendant did not show up or defend himself.
against a divorce. The prosecutor’s duty, at that point, was to enter and defend the case, if there was any suspicion, God forbid, of collusion. But these were empty words. In practice, Indiana was no different from any other state. Almost all divorces were uncontested, undefended, and the prosecutor never showed up. Divorce was available almost “for the asking.”
In short, most divorces were in fact consensual—at least in some sense. Both parties wanted the divorce, or at least were willing to let it happen. But this does not mean there was nothing else in the background—a wife disgusted with a drunken or abusive or unfaithful husband, for example; a woman whose marriage was so wretched that she felt obliged to ask for divorce. Most of the twentieth century, then, was the age of collusion. Divorce was a dual system. The real law of divorce was a pious (or impious) sham. Yet a more liberal divorce law was out of the question in most states. The forces of morality shouted down any such suggestions. Legislatures did not dare to offend the moralists. Hence, the formal law seemed unchangeable—petrified, frozen into weird, archaic shapes. Divorce had become a ritual— stylized, stereotyped, a kind of theater of the absurd.
One might imagine that men and women would find marriage inadequate in equal numbers. Or that more men would want a divorce—women, tied down with children, less chance at remarriage, and fewer economic opportunities, might cling to shabby marriages much longer than men.
After all, in collusive divorces, it was useful for a woman to bring the case. She would, of course, allege adultery, cruelty, or desertion. Women were expected to be victims; they were, to use a popular phrase, the weaker sex. It was humiliating for a man to claim that his wife had cuckolded him, or battered him with a frying pan, or had run off and left him behind. Moreover, since a woman was likely to end up with the children, and since she wanted or needed child support or alimony, she had to be cast in the role of the victim. Dorothy Thompson claimed in 1949 that “chivalry” was also a factor. A man would not want his wife’s name “besmirched,” especially if he had children. So he assumed the blame. Perhaps this was true at least once in a while.
Collusion followed the contours of the formal law. If the formal law—as in New York—insisted on adultery, then it had to be collusion about adultery. New York developed what has been called soft-core adultery. The husband would check in to a hotel. A woman (for some reason, she was usually a blonde) would come to his room. They would take off some of their clothes (usually not all).
In Ohio, “gross neglect of duty” was the favorite grounds in the early 1930s. Almost nobody alleged adultery.47 If you believed the court records, husbands in Ohio were faithful but bad providers. In Philadelphia, too, husbands were either cruel, or deserted their families in droves, but they never strayed. A study of Philadelphia, Pennsylvania, between 1937 and 1950, found desertion in 46.9 percent of the cases, 29.7 percent alleged “indignities,” and 16.8 percent, indignities and cruelty. “Cruelty” was alleged in 85 percent of the petitions in Linn County, Iowa, between 1928 and 1944. Here too, adultery barely appeared in the records. In states with longer lists of grounds than New York, plaintiffs made the less stigmatic choices. In some of these states, adultery was a crime. But adulterous husbands almost never went to jail. In Massachusetts, if the plaintiff alleged adultery, the judge was supposed to pass this information on to the district attorney, along with a “list of witnesses.” Apparently the district attorney never took the slightest notice. In 1947, the probate judges of Massachusetts recommended getting rid of this provision. It was an “unnecessary expense and ineffective.” The legislature repealed it in 1948.
There were other ways around the formal law. New York, as we said, allowed divorce only for adultery. A resident of New York, with time and money, could go to a state where the laws were much less fussy. To do this, of course, you had to establish residence in the other state. But some states were eager to oblige. Today we have eco-tourism, and sex tourism; in the past there was a flourishing business of divorce tourism. States that wanted the money from divorce tourism lowered their residence requirements, and inflated the grounds for divorce.
A number of states had tried this. But the winner, in the long run, was Nevada. “Going to Reno” became almost synonymous with divorce. Divorce, like gambling, was a way to make money in this barren, desert state, with no real economic base. But even in Nevada, a state where moral considerations, to put it mildly, rarely interfered with pursuit of the dollar, the issue evoked controversy. Women’s groups, clergymen, and others railed against easy divorce. In 1913, they demanded a strict one-year residency law. Their victory was short-lived. The residence requirement dropped to six months, then three months, then (in 1931), to six weeks. The census figures for 1929, 1930, and 1931 showed the results quite clearly. In Nevada, there were thirty-eight or so divorces, for every 1,000 residents—more than ten times higher than Oklahoma, the next highest state. In 1946, in a burst of postwar divorces, Nevada crested at 143.9 divorces per 1,000 inhabitants; in 1950, there were fifty-five per 1,000. This was still more than fifteen times the California rate—and more than fifty times the rate in New York, the state with the lowest divorce rate and, not by coincidence, the strictest divorce laws. In the late 1940s, the Nevada legislature allegedly considered a bill to allow divorce by slot machine.
In 1959, Eddie Fisher, the singer, wanted to divorce his wife (Debbie Reynolds) in order to marry Elizabeth Taylor. Fisher and his wife lived in California; but California required a oneyear waiting period before remarriage. Nevada required only a six-week residency period. A forty-four night gig at Las Vegas’s Tropicana Hotel as a nightclub singer did the trick for Eddie Fisher. (At the close of the third season of the acclaimed television show Mad Men, set in the 1960s, Betty Draper was on a plane to Reno—to begin her six-week stay that would allow a quickie Nevada divorce from philandering husband Don and an immediate remarriage to Henry Francis.)
In a federal system, divorce tourism ran a certain risk. Were these six-week wonders in Nevada really valid? Nevada wanted the divorce business; but strict states wanted to protect their citizens—and their laws—from the laxer moral views of divorce.
States, under the “full faith and credit” clause, were supposed to honor judgments of sister states. Did they have to recognize quickie divorces and remarriages in Nevada? Or anywhere?
Two cases in the 1940s involved the tangled affairs of squabbling couples in North Carolina. North Carolina, like New York, was a very hard-nosed state. Divorce was basically only for adultery. Mr. Williams, who had a wife and four children in North Carolina, went to Nevada and checked in to the Alamo Auto Court, on the Las Vegas-Los Angeles Road. So did a Mrs. Hendrix, also of North Carolina. They stayed for six weeks, and each filed for divorce. Notice was published in a Las Vegas newspaper; and copies of the summons and complaint were mailed to the outraged spouses in North Carolina. Williams and Hendrix got their divorces, and immediately married each other in Nevada. But when they returned to North Carolina, they were accused of bigamy, arrested, and convicted.
The U.S. Supreme Court reversed their convictions. The Nevada divorce was valid under Nevada law; and therefore, under the full faith and credit clause, North Carolina had to give effect to the judgment of divorce, even if it would not have permitted a divorce under the same circumstances. But Williams and his new wife were by no means out of the woods. The case went back for retrial. Again, Williams and Mrs. Hendrix were convicted. But this time, the conviction was based on a slightly different theory. The Nevada divorce was said to be invalid because Williams and Hendrix never intended to make a home in that state. Their “residence” in Nevada was fake; and this meant that Nevada had no jurisdiction over them in the first place. And this time, the Supreme Court affirmed the decision. What was the difference between Williams I (1942) and Williams II (1945)? Only that in Williams I (according to the Supreme Court), North Carolina assumed the right to disregard Nevada’s decree, without challenging its validity. In Williams II, North Carolina did precisely this—that is, challenged the validity of the divorce under Nevada law—and prevailed. Presumably, Williams and his new wife, Hendrix, went to jail.
No-Fault Divorce In Bluffdale Utah
Today you can apply for a divorce in Utah on no fault grounds. Speak to an experienced The legal story of divorce in the twentieth century was basically of how this dual system decayed—at first rather slowly, then, after 1970, in almost a helter-skelter rush. Change started with a bang, in 1970, when California enacted the first so-called no-fault statute. The statute got rid of the very word “divorce,” and changed its name to “dissolution of marriage.” It provided that a court “may decree” a dissolution if “irreconcilable differences” have caused the “irremediable breakdown of the marriage.” The reformers who drafted and lobbied for this law clearly intended that the court would not be a mere rubber stamp. The law defined “irreconcilable differences” as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage.” This seemed to be asking the court to conduct some sort of hearing, and make some findings of fact. Indeed, the statute went on to say that “If from the evidence at the hearing, the court finds that there are irreconcilable differences,” it can order the dissolution of the marriage. The court could also continue the case for thirty days, if there was a “reasonable possibility of reconciliation.”
This is not really divorce on demand—at least not if you read the text literally. But as is so often the case, the text is no guide to what actually happened. Almost immediately, the hearings disappeared, the thirty-day continuances disappeared, the taking of evidence disappeared, conciliation disappeared. The statute came to mean simply this: if either party wanted out, and for any reason, the marriage was over. The judge was reduced to a rubber stamp. Conflict could (and did) remain over property, support payments, and child custody. But the divorce itself was no longer an issue. No-fault was not just consensual divorce. It was unilateral divorce. It does not matter if the other spouse says no. There is no defense to a petition for a no-fault divorce. Divorce is available for the asking.
It was as if a dam had broken. In 1971, Iowa and Minnesota followed California’s lead. Soon other states rushed to climb on the no-fault bandwagon. Many states, like Minnesota, simply wiped out the old grounds for divorce. Another group added “irretrievable breakdown” to their list of grounds for divorce. A few states—Nevada was one—used the concept of “incompatibility” to reach the same result. In Pennsylvania, if both parties agree that the marriage is “irretrievably broken,” they can divorce by consent almost immediately. But even without mutual consent, a no-fault divorce can be granted after a two-year separation. In most states, not only did a law of the California type carry the day, but the results were also the same as in California: not consensual, but unilateral divorce. In Nebraska, a survey in the 1970s of nearly 10,000 divorce cases failed to find a single one in which a divorce, which one spouse wanted, was refused. In Iowa, too, the result was exactly the same. Divorce (or “dissolution of marriage”) is on the whole easier and cheaper in the United States than in most other countries; but many European countries have been moving in the same direction. In Germany, for example, couples can divorce if their marriage has broken down; and a year’s separation is conclusive proof that it has. They can, in fact, divorce even earlier, if both parties consent. Divorce law in the Scandinavian countries is similar: after a period of separation (usually a year), it is essentially no-fault divorce.
Divorce law has always been legally more complex than marriage law. Thousands of lawyers make money out of divorces and divorce settlements. Nobody makes much money out of marriage laws. Yet divorce depends on marriage. Divorce is marital breakup. The ethos of divorce flows from the social ethos of marriage. To understand divorce, we must look to changes in the social meaning of marriage. At the beginning of the twentieth century, most people at least gave lip service to traditional values and traditional ideas about marriage. And what many couples expected out of marriage was not totally beyond reach. Moreover, divorce carried a certain stigma; and was, at best, a last resort. “Living in sin” was, well, a sin— and a scandal besides. Children born out of wedlock carried the stigma of bastardy. Of course, many people violated the rules. Not many flaunted them, however.
Yet traditional marriage was already shifting, in subtle ways in the direction of what can be called companionate marriage. Traditional sex roles were eroding. Couples were supposed to be close to each other, best friends as well as lovers. The man was still the head of the household. But the ideal marriage was supposed to be a partnership—a union of (more or less) equals. Of course, true partnership within the family was still rare. But the theory in itself put a strain on traditional marriage. Men and women expected more from each other. When expectations are not met, intimacy could become “suffocating,” and demands “unbearable.” Divorce became a kind of “safety valve” that made the system “workable.” And divorce was the gateway to remarriage. If remarriage, as the cynical phrase puts it, is the triumph of hope over experience, then divorce is one of the ship’s essential pilots.
New York was the lone holdout on true no-fault divorce until the twenty-first century. It finally joined its sister states in 2010. Until then, the legislature had rejected numerous no-fault proposals over the years, clinging to the old system, with all its faults and frustrations. It not only maintained, as many states did, a fault-based option; its only no-fault option was a one-year separation pursuant to a formal written agreement resolving all issues related to money and children. And to add insult to injury, the fault-based grounds were construed strictly, meaning that couples sometimes litigated their divorces all the way to the state’s highest court and were still denied. In 2009, Novel Davis filed for divorce against her husband of forty-one years, Shepherd Davis, on grounds of abandonment. They were still living in the same house, but, she claimed, he had abandoned her socially. He refused to celebrate holidays or birthdays with her, or eat meals together, or go to family functions or movies, restaurants, or church together; he removed her “belongings from the marital bedroom.” But this sort of “social abandonment” was not “abandonment” within the meaning of the divorce statute; to prevail she would have had to prove that, for a period of one year, he moved out, locked her out, or refused to have sex without justification (and despite repeated requests). The court rejected the idea of “social abandonment” to avoid a back door to no-fault divorce. This approach left Novel Davis married, the same fate that had befallen other unsuccessful divorce plaintiffs in the supposedly modern era in New York.
The new law will put an end to these marital life sentences. It maintains the divorce code’s traditional structure, but adds an additional ground for divorce when the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. This establishes unilateral divorce, as well as no-fault divorce for couples who can agree to part ways, though issues of property and custody can remain.
What did no-fault accomplish? One result is clear. It swept away the lying and the perjury and the squabbling over “grounds” for divorce. It eliminated collusion once and for all. It wiped out all the defenses—recrimination, condonation, and the rest. Many reformers wanted to legitimate consensual divorce— divorce by agreement of man and wife. But it was unilateral divorce, a much more radical change, that actually occurred. Any partner could end a marriage, at any time, and for any reason, or no reason at all.
Divorce—or, dissolution of marriage—thus became quicker and easier to get. And cheap—even, at times, extremely cheap, especially if you bought a do-it-yourself handbook on divorce; or patronized a company, like the one that promises a “premium online divorce” (an “easy, accurate, and up-to-date” service, available for an “uncontested divorce”). Completed documents could be “ready for filing in less than 1 hour.” Do not use any such services if you are seeking a divorce in Bluffdale Utah. Speak to an experienced Bluffdale Utah divorce lawyer for assistance. Each case is different. There is no one solution that fits all.
Annulment In Bluffdale Utah
Annulment is another way of ending a marriage. Annulment wipes a marriage off the books, as if it never existed. This is, as we said, appealing to devout Roman Catholics. The Church forbids divorce and remarriage, but if a marriage is annulled, then the parties can remarry, since (in the eyes of the Church) they were never married to begin with.
A Catholic annulment is not the same as a legal annulment. A Catholic annulment requires a proceeding in church tribunals. These tribunals grant about 40,000 annulments per year, up from a mere 368 per year in 1968. A couple can have a Catholic annulment without a secular annulment; and vice versa.
In American courts, annulment proceedings are much less common than divorce proceedings. The formal rules have always been—on the surface, at least—quite strict. Annulment is possible only when something was radically and fatally wrong with the marriage from the very beginning. A decree of annulment tears up a marriage “by the roots.” State statutes list various “grounds” for annulment—typically bigamy, impotence, infancy, imbecility, incest, fraud, and duress—the flip side of the “impediments” to marriage.
The law of annulment distinguishes between “void” and “voidable” marriages, based, at least loosely, on the severity of the marital defect. Under the Oregon Code of 1930, for example, an incestuous marriage was absolutely void. The same was true if a person married someone with “one-fourth or more of negro blood.” Or if the marriage was bigamous. These marriages were invalid even if no court ever formally nullified them. Still, victims of bigamy often asked for annulments, probably to make the matter official, even though their marriage was already “void.” Josephine Mendes, a “petite film actress,” who had “one of the smallest pair of feet in the film colony,” married Joseph Y. Fernandez, in Tijuana; she found out he already had a wife, and child; she then left him and got an annulment, in September 1935. And in 1943, John A. Blackadder, owner of a detective agency, got an annulment from his wife, Idelia, even though they had been together for nineteen years. Idelia told him her original husband had been killed in the First World War, but he turned out to be “very much alive.”
Certain other kinds of marriage, however, were merely “voidable.” These marriages could be annulled; but unless and until this was done in court, the marriage was treated as valid. A marriage in Oregon was “voidable” if either party was “incapable” of entering into a marriage contract, “or assenting thereto, for want of legal age or sufficient understanding”; or where consent was “obtained by force or fraud.”
Very hasty marriages, marriages of people who were so drunk they had no idea what they were doing, marriages that were thought of as jokes, are all examples of marriages that could lead to annulments. In Atlanta, in 1924, an eighteen-year-old woman claimed she was “drugged while on an automobile ride” and was only “semi-conscious” during her wedding. In San Mateo County, California, in 1952, Linda Moyers left her husband, Eugene, one day after they got married in Reno, claiming she was dead drunk during the ceremony. In 1908, Alexander Vazakos, a Greek student at Columbia University, wanted to annul his marriage to Luise Xenia, who was nearly sixty years old. In Greece, Luise was giving him German lessons; she hypnotized him, so that his “sense left him,” and he “felt compelled to obey her wishes.” He ran away from Athens to the United States; but Luise followed him. All of these annulments were granted.
Young hasty marriages have always been in danger of annulment. More recently, there seems to be a rash of hasty celebrity marriages, followed by second thoughts and annulments. The singer Britney Spears married a childhood friend in 2004 and the next day filed for annulment. Her claim: she “lacked understanding of her actions,” and was “incapable of agreeing to the marriage”; the two did not “know each other’s likes and dislikes” or their wishes about children, and were in general completely “incompatible.” She got her annulment. Darva Conger married Rick Rockwell, on air, at the end of a TV show, Who Wants to Marry a Millionaire? Rockwell really was a millionaire, but he was also a man who had been restrained by a prior girlfriend who alleged domestic violence. Annulment granted. Actress Carmen Electra and Dennis Rodman, a professional basketball player, annulled a drunken marriage; Renée Zellweger annulled her short-lived marriage to country crooner Kenny Chesney, citing unspecified “fraud.”
Annulled marriages were typically short. There were occasional exceptions—the Blackadder marriage, for example, mentioned above. Some sort of record was probably set by Herman Rosenblat, who told his sad tale in Los Angeles in 1931. He had been married thirty-seven years, to a wife who was “mentally unbalanced.” All those years, out of “deep and enduring love,” he had persisted, hoping for a cure. Finally he gave up. The wife was now in an institution. The judge granted the annulment.
Under some statutes, parents of underage spouses can petition for annulment, perhaps even when both bride and groom object. A California father, in 1900, tried to annul the marriage of his underage daughter. He failed, after he confessed in court that he “had so many children” that he was unsure of his daughter’s actual age. Judges sometimes annulled unconsummated marriages, especially when the bride (or groom) was very young. Physical impotence was grounds for annulment in most states. Florence Walter complained that she and her husband had tried, and failed, to have intercourse, even though she did “all that a woman could do to assist him.” She said his private parts were correctly formed, “if rather small.” Ethel Lipscomb sought an annulment because, she claimed, her husband’s long history of obsessive masturbation had left him impotent. In both cases, the judge granted annulments.
Fraud—basic lies about some critical fact—was also grounds for annulment. Dora Monte of Los Angeles married Stanley Carr in October 1918. Carr, it turned out, was underage; and a “lounge lizard.” He was an “expert fox trotter,” but he also told lies about money and about a supposed large income from his father’s estate. When Dora found out the truth, she left him “at once,” and got an annulment. Lack of mental capacity was grounds for annulment as well. As we saw, early in the twentieth century, states tried to prevent the marriages of people with mental disabilities. Even today, every state requires some minimal level of mental competence for marriage. But the legal standard is extremely low—lower than for virtually any other legal act. Even a person in an asylum, or under a conservatorship, or legally incompetent to write a will, may be competent enough to marry. All that is needed is some sort of understanding of what a “marriage” is.
Like divorce cases, annulments were much easier to get when the other party failed to contest. In contested cases, courts could be tough. In a Massachusetts case from 1934, Pauline Maier Hanson told a pathetic tale: she was underage, and had been bamboozled into marrying young Hanson. He told her he would lose his job if she did not marry him; his salary had been raised because he was going to be married; and if she would go through with the formalities of marriage, they could get it annulled the next day. They got married, she went home, and her family (not surprisingly) flew into a rage. Hanson, to add injury to insult, suffered from a venereal disease. Pauline claimed duress and fraud; and said they had had no “sexual relations.” The trial court granted an annulment; but the appeal court reversed. This court saw no real duress; the so-called fraud did not go “to the essence of the contract.” Marriage, said the court, “is not something to be swept aside lightly.”
In New York, on the other hand, marriage apparently was something that could, at times, be swept away lightly. New York was the exception to the general rule that annulments were tough and uncommon. In New York, prior to the 1960s, as we saw, adultery was the only grounds for divorce. This led to what we called soft-core adultery, and to migratory divorce; but also to a high demand for annulment. New York was to annulments what Saudi Arabia is to oil. Apparently, there were almost as many annulments in New York as there were divorces, at least in some parts of the state. In New York City, in 1946, out of 11,802 “dissolutions,” no less than 4,169, or 35 percent, were annulments. And the courts, it seems, were quite willing to bend the law (or, more accurately, to bend normal doctrine about annulments). In New York courts, for example, “fraud” was a more elastic concept than it was in other states. In 1919, Mrs. Barbara Grube, of the Bronx, wanted her marriage to Edward annulled. He had told her he was a “true blue” American; but she found out he was an “alien enemy.” This “fraud” made Barbara herself an “alien enemy in the eyes of the law.” A judge granted the annulment.131 Women also demanded annulments if they discovered their husbands were anarchists, or Bolsheviks, or Communists; or if husbands lied about health, or “chastity, professional status, and financial standing”; or if they concealed facts about “mental illness, atrophy of private organs, criminal record, and illegal presence in the country”; or made false promises to “establish a home,” or to “have children,” or to follow the spouse’s religion, and so on.132 Appellate courts were sometimes reluctant to grant these annulments; but most cases never got that far. In general, New York courts were quite accommodating.
Other states were and are less willing to stretch the meaning of fraud. A marriage contract is more difficult to avoid because of fraud than ordinary contracts.” Courts by and large have taken a kind of “buyer beware” approach to fraud; they refuse to nullify marriages for “blind credulity” to statements made during a courtship. In a California case, Marshall v. Marshall (1931), the husband had lied about his money and about his ability to support her in the style to which she was accustomed. But this, according to the Supreme Court of California, was not the kind of “fraud” which entitled her to an annulment. Annulments were for “extreme” situations only, those that struck at the heart of marriage.
Fraud, in official doctrine, referred only to misrepresentations about the “essentials of the marriage”—definitive aspects like sex and procreation. In a Massachusetts case, Michael Reynolds wanted to annul his marriage to Bridget, who, in the six weeks they had known each other before marrying, had passed herself off as “chaste and virtuous.” But, in fact, she was pregnant with another man’s child at the time of the marriage. Here the wife’s pregnancy undermined her husband’s implicit “right to require that his wife shall not bear to his bed aliens to his blood and lineage.” And, as a pregnant woman, she was “incapable of bearing a child to her husband at the time of her marriage,” and thus “unable to perform an important part of the contract.”
Courts also seemed willing to grant annulments in cases of sterility and undisclosed venereal diseases, which also related to the “sexual relations that are at the heart of the marriage.” But they were reluctant to go further, until recently. Some modern cases have moved toward a more subjective test for fraud—one that asks whether a misrepresentation was essential to this marriage. Would the truth have been a deal-breaker for this particular deceived spouse? If so, it might justify an annulment on grounds of fraud, even if other marriages could continue happily under the same circumstances.
The Economic Consequences of Divorce in Utah
Divorce can swiftly end a marriage, but the economic consequences can last a lifetime. As with many aspects of family law, the law governing the economic consequences of divorce underwent a dramatic shift during the twentieth century. In broad brush, husbands lost exclusive control and ownership of property during and after marriage; more and more they had to share ownership during marriage with wives, who had strong claims to property upon dissolution; the common-law tradition that relied on strict (and unequal) gender roles shifted to a more egalitarian approach. Yet even under the modern rules, women suffer more financially than men after divorce.
These changes, despite their importance, took place quietly, with little fanfare. Also, in a way, modern law was shaped not only by the way in which gender roles have changed, but by the way they have remained the same for many couples. The common-law system assumed that women would stay home as housewives and this was mostly true. Modern law has to take into account the persistence of traditional patterns, in which still more women than men never work, quit working, or work less in order to keep house and raise children, and therefore have less wealth and earning power than their husbands. The story, then, is mostly about couples with money—though usually one or both spouses will have to do with less after the divorce. And if there is no money, there is nothing to fight over, nothing to divide.
There are two basic questions: who gets what right now (property division), and should either spouse share in the other’s future earnings (spousal support). The answers are far from simple. These issues are “the main concern in divorce negotiation
The Common-Law System of Property Rights of Husband And Wife
The common-law system of marital property had two defining features: coverture during marriage, and a title-based system of distribution at divorce. The principle of coverture suspended the wife’s legal identity during marriage. For all practical purposes, husbands controlled family property. Husbands were supposed to support their wives, but the doctrine of marital privacy usually made this duty all but unenforceable. However, once coverture was abolished by the Married Women’s Property Acts, married women could own property, and earn money, in their own right.
But what happened after a divorce? The common-law system revolved around a basic, if crude, principle: eat what you kill. In so-called separate property states, everything in the husband’s name went with him; everything in the wife’s name with her. Spouses, in other words, did not acquire ownership rights in one another’s property simply because they were married.
When combined with coverture, the title-based system was potentially devastating for wives. Although the system spoke of “separate property,” coverture prevented wives from holding or acquiring separate property during marriage. They had usually turned premarital property over to their husbands upon marriage, and any property acquired during marriage was at least initially in his name as well. Thus, when the time came to divide property, a court could award most or all of the property to the husband. Some courts, it seems, often split property between spouses—disguised as “alimony,” or simply by ignoring formal law. But without a system that clearly authorized redistributing property, wives could be left destitute.
Coverture disappeared, but the title-based system remained. The shift from an agricultural to a wage economy further stratified gender roles. In an industrial society, men, by and large, brought home the bacon; women worked at home. A woman who brought property into the marriage kept hold of it, but most women had no such property. South Carolina (once it allowed divorce at all) was unique in applying a “special equity” doctrine, which allowed courts to grant a wife a share of her husband’s property upon divorce if she could prove she had made financial or other contributions that helped her husband acquire it. This was an exception to the rule that ownership flowed from title, but did nothing to alter the basic problem— wives had little chance as an initial matter to hold or acquire title to property.
Alimony in Bluffdale Utah
Historically, courts in all states could award alimony to wives, in a divorce or legal separation. In 1931, every state but four had a statute expressly authorizing alimony for wives in divorce cases. Three of those four states had some other mechanism to deal with wives’ economic needs (the fourth, South Carolina, had no alimony because it had no provision for divorce). A husband’s duty to support his wife survived the end of the marriage. The husband in the old days was a “substitute for a pension or social security”—his money prevented a wife who had never worked from becoming a “public charge.” Alimony was supposed to strike an “equitable balance between the needs of the dependent spouse and the ability of the supporting spouse to pay.”14 But there were restrictions until the 1970s. In some states, a husband’s fault was the precondition for an alimony award. Oklahoma, for example, permitted alimony only if the divorce was based on the “husband’s aggression.” Most states simply authorized alimony for any “plaintiff.” But in all but seven states, a “guilty” wife—especially an adulteress—was barred from collecting alimony. A review of one hundred alimony awards appealed in the 1930s showed that a “guilty” wife almost never received alimony, particularly if she was “divorced for her cruelty, adultery, or desertion.” This preoccupation with fault would abate later in the century, but never fully disappear. And in California, if the wife had a sufficient “separate estate” or there was sufficient community property to provide for her, the court could deny her any support. In most jurisdictions, alimony terminated if the wife died or remarried. A dead woman needs no support; and a new husband took over the duty of providing for support.
Alimony, in any event, was never automatic. Whatever the statute said, the size and duration of awards were (and still are) almost entirely a matter of judicial discretion. A few states limited awards to a certain percentage of a husband’s income; most simply authorized “reasonable” or “just” or “equitable” or “proper” amounts. In practice, few wives were granted alimony awards; most ex-husbands failed to pay; and ex-wives rarely went back to court to try to collect their money. Federal government data from the late nineteenth century showed that alimony was awarded in 9 percent of divorces. Later studies and surveys agreed on low frequencies; alimony was awarded in no more than 15 percent of divorces. In Ohio, in the 1930s, alimony was awarded in 10.5 percent of cases; but in 74.5 percent of the cases in which women won custody of minor children. In Alameda County, California, in the early twentieth century, alimony was awarded in only 7.6 percent of the cases where the couple had no children. In general, alimony never served as an effective financial backstop for women.
At the core of modern equitable distribution statutes is at least a thin commitment to the “partnership principle”—the idea that spouses are partners who should share the gains or losses equally if the partnership dissolves. Spouses should be rewarded for their contributions, no matter what form the contributions take. Economists have tried to put a price tag on the value of homemaking services. Judges, under state statutes, have broad discretion to value these services, and to weigh them against competing factors. Judges may also try to gauge future financial need—what it takes to maintain status and standard of living, and the cost of job training for those who have stayed out of the job market. Modern statutes tend to list factors judges might take into account, but judges in Utah still have enormous discretion. Fault, too, can sometimes play a role in these awards, as we will see.
During a divorce proceeding, property is retroactively labeled as “separate property” or “marital property,” depending on when and how it was acquired. “Marital property” is defined much like “community property”: property earned by either spouse during marriage. Separate property, more or less, is everything else. Once a couple’s property has been inventoried and classified, each piece is assigned a value and allocated according to the statutory guidelines. Some states allow both separate and marital property to be equitably distributed; others provide that separate property automatically stays with its owner. The Uniform Marriage and Divorce Act (UMDA), promulgated in 1970, takes the former approach. Only six states formally adopted the UMDA, but it nonetheless reflected and reinforced the modern trend toward more equal property-sharing at divorce. Over time, the outcomes produced by equitable distribution rules and community property rules have started to converge. In most states, regardless of the governing system, judges presume that marital property will be split more or less evenly, but have some power to deviate based on equitable factors. But despite this convergence, only in community property states do spouses gain ownership rights during marriage, and not just at divorce or death. The joint “ownership” in separate property states is at best a system of deferred community property, where rights do not kick in until the marriage ends.
Two major developments have altered the legal treatment of alimony: new norms of sex equality and no-fault divorce. In Orr v. Orr (1979), the Supreme Court struck down an Alabama law that said husbands—but not wives—may be forced to pay alimony. Alabama had argued that alimony was designed to provide for needy spouses, and that gender was a good proxy for need. Their rule also compensated for past discrimination in marriage, which left women unprepared to compete in the workplace. In fact, women were more likely in 1979 to be economically dependent on their husbands than vice versa, and ex-wives very likely did suffer reduced earning capacity because of marriage (as many still do today). But individualized hearings could smoke out need regardless of gender, and the Court refused to stereotype women as dependent, even if, by and large, they were. This decision was part of a larger move to purge family law of rules that formally enforced or presumed gender-based roles for husbands and wives.
Orr marked the end of gender-based alimony statutes and awards. It also meant that alimony could no longer be justified as an extension of the husband’s duty of support. During the same decade, no-fault divorce was becoming the norm, introducing new ideas about the role of marriage—and remarriage—in individuals’ lives. Individualism, and expectations for happiness even at the expense of the family unit, began to triumph. No-fault divorces, which tend to be quicker, cheaper, and less messy than fault divorces, may have reduced acrimony in divorce. But they also fueled a clean-break theory—the idea that couples should be able to end a failed marriage, go their separate ways, and, perhaps, find happiness in a better marriage. Lifelong alimony was inconsistent with this ideal.
Formal gender neutrality and no-fault made it easy for courts to limit or reduce alimony awards drastically. These awards were already sparse and meager. Courts more and more showed their dislike for the very idea of alimony—the idea that a spouse, especially the husband, had “a continuing economic responsibility for the other after divorce.” Some courts felt this notion was based on an outdated concept of marriage. One court said it impeded a man’s future freedom, and, as for the woman, it might encourage her to “live a life of physical and mental indolence.” Awards, according to this court, should be based not only on the “needs of the rejected wife,” but on “what the man can afford to pay,” giving both “the opportunity to make a new life on this earth.” The court noted the “profound and deep social change” wrought by “women’s liberation,” and the resulting increase in work opportunities for women. A divorced woman, in short, should get a job. Some feminists agreed; ex-wives needed to become independent. Property division was better than alimony. Assets acquired during marriage were the product of the efforts of both spouses; they should be divided, and then each should go his or her merry way.
Alimony thus shifted from lifetime support to short-term, “rehabilitative” awards. Some states went as far as to prohibit permanent awards altogether. But in most, permanent alimony was technically available, but in practice reserved for women married a long time and “of no skills,” with a “debilitating infirmity,” or “of advanced age.” Other dependent spouses could receive alimony for a limited time, often keyed to the time necessary to obtain a particular educational degree or find a decent job. This narrower type of alimony tries to balance a woman’s genuine need to be “rehabilitated” from dependency, and the desire to give divorcing couples an unencumbered future. But the renunciation and critique of alimony in the 1970s may have been too hasty. New studies suggested that divorce left women worse off than men. Lenore Weitzman claimed that, one year after divorce, the average standard of living of men had gone up by 42 percent; the standard of living of women had gone down by 73 percent. Her methods and analysis of data have been severely criticized, as has the fact that she blamed these effects on no-fault divorce. But poverty in female-headed households was real enough. Most studies and surveys concluded that divorce imposed harsher consequences on women and children than on men. In fact, the economic situation of women and children, it seems, “was bad before no-fault, and it continues to be bad now.”
Property redistribution was supposed to level the financial playing field after divorce. But most divorces occur early in marriage, and the net value of most marital estates is relatively small. Real estate, cars, or furniture were the most common types of property transferred. Not stocks, bonds, or huge piles of cash. Spousal support was, in short, still badly needed in some cases.
Courts again began to acknowledge the hard fact that most divorcing couples do not have enough assets to support two households and that primary caregivers suffer the most.
Today, alimony statutes resemble equitable distribution statutes. They authorize judges, in general, to make “just” or “equitable” awards, sometimes guided by a list of relevant factors. In some states, judges must first make a threshold finding that one spouse was a “provider” and the other was a “dependent” in order to award alimony at all. The American Law Institute’s Principles of the Law of Family Dissolution, shift the focus away from need; they suggest instead that awards be designed to compensate for specific losses incurred in marriage—for example, losses in standard of living, when a spouse after a long marriage has few skills and little money; or reduced earning capacity, because of child care duties. In general, today, permanent alimony in Utah remains taboo except in cases of very long marriages. Judges are reluctant to impose alimony at all, particularly if property division can be used to balance out the parties’ financial positions.
“Fault” has disappeared from divorce in the no-fault age. But does—and should—fault play a role in decisions about property and spousal support?
Most states including Utah consider fault as a factor, if the misconduct had some sort of economic effect. For example, if the husband gambled away part of the marital estate in Las Vegas, he might get a smaller share of what’s left. Same, too, for a wife who intentionally dissipates marital property in anticipation of filing for divorce. But the states do not agree about whether other forms of marital misconduct should be relevant to property division or not. In almost half of the states, “fault” matters, in at least some cases, even if it has no economic consequences. In states that treat marriage as something like a business partnership, the goal is an even split between partners; and fault is irrelevant. The Uniform Marriage and Divorce Act, in 1970, urged property division “without regard to marital misconduct,” as if a partnership were being dissolved.
An increasing number of couples leave nothing in the hands of a neutral fact-finder. These couples are bound by a contract that spells out the terms of their divorce. Most of these are contracts made before marriage—prenuptial or premarital agreements; during marriage with the intent that it continue—postnuptial agreements; or on the eve of divorce—separation or dissolution agreements. All three types of agreements have become increasingly enforceable, part and parcel of the general shift toward individualized marriage—and customized divorce.
The usual purpose of premarital agreements is to fix what happens to assets if the marriage is dissolved by divorce, annulment, or the death of one spouse. Couples have entered into premarital agreements for centuries. But historically, courts were hostile to the very idea. Marriage was a legal “status,” whose terms were dictated by the state, and regulated by the state; and which applied to all couples. But the courts today are much friendlier to such agreements. This shift is related to the more general trend we have mentioned: individuals and couples have gained greater power to fix the terms of their relationships, and greater control over their marriages—before, during, and after. This long-term shift, from status to contract (as it were), is seen in all parts of family law—no-fault divorce, for example, epitomizes this same idea—and, in this case, the custom-made divorce.
In the past, well-to-do people entering into second or later marriages tended to execute premarital agreements, often to protect the inheritance rights of children from an earlier marriage.
Beginning in the 1960s and 1970s, however, more couples began to use these arguments to regulate the economic consequences of divorce, as well as those of widowhood. Richer spouses would have less to lose in a divorce situation, if they had such an agreement. But agreements that customized rights like alimony and property division challenged the state’s authority to regulate marriage as a legal status; and courts were skittish about enforcing contracts that gave people an economic incentive to get divorced.
The traditional hostility to premarital agreements began to crack in the 1970s, in the age of no-fault, greater equality of women, and a sharp rise in rates of divorce and remarriage.
Now every state agrees that couples can enter into enforceable prenuptial agreements that spell out the economic consequences of divorce. But should these contracts be treated just like all other contracts, or should there be special rules to govern them? Contracts generally are presumed to be enforceable; they are presumed to reflect voluntary exchanges, which both sides want, and which benefit them both. And parties are generally bound by their agreements. The worry is that these conventional rules, if applied to prenuptial agreements, might produce unfair results. Prenuptial agreements are valid under Utah divorce laws. The Uniform Premarital Agreement Act (UPAA), which was promulgated in 1983, tried to encourage states to take a more uniform approach to enforcement. More than half the states have since adopted this act. The UPAA encourages enforcement of prenuptial agreements, but stops short of treating them like ordinary contracts. It provides that a spouse can block enforcement of a premarital agreement only if the spouse can prove that: (1) the agreement was executed involuntarily; or (2) the agreement was unconscionable, and it was signed without fair and reasonable disclosure of the financial circumstances of the richer party.
Bluffdale Utah Divorce Lawyer Free Consultation
When you need legal help with a divorce in Bluffdale Utah, please call Ascent Law (801) 676-5506 for your Free Consultation. We can help you with Divorce. Child Support. Annulments. Alimony. Child Custody. Adoptions. Step-Parent Adoptions. Post Nuptial Agreements. Prenups. Guardianships. Conservatorships. And Much More.
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