Today to get a divorce all you need to do is get in touch with an experienced Salt Lake City divorce lawyer. The divorce law in Utah is very different from what it used to be in the past.
The divorce procedure is described—and approved of, in a qualified way—in Deuteronomy. The grounds for divorce are that a husband find “something shameful” in his wife. In the Middle Ages the grounds for divorce were tightened considerably, making divorces almost impossible to obtain. People could get divorces of bed and board—what we today would call a separation. They would live apart but could not remarry.
The tribulations of King Henry VIII led the English, in 1534, to allow individuals to appeal to the House of Lords for a divorce. This procedure was cumbersome, though, and it wasn’t until 1801 that a woman petitioned for a divorce. In 1857, England allowed courts to grant divorces, but this did not open the divorce floodgates: by 1886, British courts were granting only 400 divorces per year. (By way of contrast, in 1890, U.S. courts granted 33,461 divorces.)
In the United States, divorce has been around since the Puritans. In 1639, James Luxford’s wife asked for a divorce because Luxford already had a wife. The Puritans had what were, for the time, rather liberal divorce laws. Acceptable grounds for divorce included female adultery, male cruelty, bigamy, desertion, failure to provide, and impotence. Divorce hearings, besides deciding whether a divorce would be granted, determined which party to the divorce had been responsible for the breakup of the marriage. The guilty party was fined, whipped, or put in the stocks. Puritans were also likely to forbid remarriage by the guilty party. Such a person had, after all, shown incompetence in matters matrimonial and had no business trying to form another family.
In the early 1700s, Connecticut accepted the notion that when divorces happened, someone was to blame and should be punished, but added a unique twist: if both marriage partners were guilty, then no divorce would be granted. The implication is that in such cases, the appropriate punishment was for the partners to be forced to live with each other.
By the 1830s, divorce was easier to get in America than in Europe, with some states having more liberal divorce laws than others. In Virginia in 1827, acceptable grounds for divorce included adultery, cruelty, and just cause of bodily fear. In South Carolina, on the other hand, divorce was impossible until after the Civil War.
In the course of the nineteenth century, states kept adding to the list of acceptable grounds for divorce, sometimes with unintended results. Indiana accidentally turned itself into a divorce mecca when, in 1852, it allowed judges to grant divorces on grounds they found “proper.” This alone would have made Indiana a desirable place to get a divorce, but what really did the trick were three other features of Indiana law. First, Indiana had a minimal residency requirement. Indeed, your own affidavit was regarded as sufficient proof of residency, so that an unscrupulous person might establish his residency in Indiana without actually residing there. Second, Indiana law allowed notification of divorce proceedings to be served through publication. This meant that you could, by putting an ad in an Indiana newspaper—which people in other states and certainly in other countries would be unlikely to read—satisfy the law’s requirement that you inform all relevant parties of your intent to divorce. Third, under Indiana law, divorce decrees were irrevocable. In theory, a person could go to Indiana, declare residency, put an ad in a paper, and in short order be divorced. The spouse might not even find out about it until months later, and protests of unfairness would be met with the reply that the divorce was irrevocable. In 1873, Indiana tightened its divorce laws and thereby closed the Pandoras box it had inadvertently opened. This was Americas first encounter with “migratory divorces” on a grand scale.
Indiana is not the only place to gain infamy for its divorce practices. Thereafter, Utah gained a reputation as a divorce mill, followed by the Dakotas, Oklahoma Territory, and of course Nevada.
By the beginning of the twentieth century, politicians were up in arms about interstate differences in divorce laws. One state, believing that marriages should be terminated only in extraordinary cases, might enact restrictive divorce laws only to see its citizens slip across the state line to obtain an easy divorce in the neighboring state. And then, adding insult to injury, the citizens in question might cross back, flaunt their divorce, and perhaps even remarry in their original state.
Here in a nutshell is the (political) problem with migratory divorce. If people are allowed to migrate to obtain divorces, the divorce standards of the entire country will effectively be set by the state that is most liberal with respect to divorce. This state will tend to drag down the standards of the other states: they can either maintain their restrictive divorce laws and see them circumvented, or they can weaken them. This might be thought of as Gresham’s Law of Divorce. According to the original version of Gresham’s Law—found in economics texts—bad money will drive good money out of circula tion. (If you had two dimes in your pocket, one of which you knew to be 100 percent silver and the other of which you knew to be only 50 percent silver, you would spend the one with less silver and hoard the other. Others would reason similarly. The debased coin would circulate, the undebased coin would not.) In much the same way, Gresham’s Law of Divorce declares that liberal divorce laws in one state will tend to drive restrictive divorce laws out of the law books of surrounding states.
Notice, too, that states that liberalize their divorce laws and become divorce meccas usually profit from doing so. Their hotels will be full, their tourist industry will thrive, and their divorce lawyers will enjoy boom times. The lobbying money spent by these prodivorce forces is unlikely to be matched by groups opposed to easy divorce. Thus, economic factors bring divorce meccas into existence and help them endure.
There are two fairly obvious ways in which migratory divorces could be blocked, but both raise constitutional issues. The first is for the federal government to enact divorce laws, so that all states have the same standards for divorce. Then no advantage could be gained by crossing state lines to obtain a divorce. It is generally agreed that such laws would be an unconstitutional infringement by the federal government on the rights of states. Some attempts have been made to amend the Constitution in this respect, but to no avail.
A second way to block migratory divorce is for states with restrictive divorce laws simply to refuse to accept divorces granted in states with more liberal laws. When states tried this, chaos resulted, with some states regarding a “divorced” couple as still legally married. In 1906 the Supreme Court settled the issue by ruling, in the case of Haddock v. Haddock, that a state could reject a divorce decree issued by a state that was not the couple’s marital domicile. In 1942 the Supreme Court modified this view in the case of Williams et al. v. North Carolina, which involved a man and woman from North Carolina who were married—but not to each other—and who ran off to Nevada to obtain divorces from their respective spouses. They subsequently got married and returned to North Carolina, where they found themselves charged with bigamy. The Supreme Court ruled that North Carolina had to accept the Nevada divorce, thus overturning Haddock v. Haddock. North Carolina kept pestering the couple, though, and questioned whether the couple’s six-week residence at the Alamo Auto Court (in Nevada) counted as a valid residence. The Supreme Court concluded that it did not. In short, states were required by the full faith and credit clause of the Constitution to accept the divorces granted in other states—but not always.
The No-Fault Divorce Revolution
After World War II, divorces became easier to obtain. By the mid1960s, several states included- “living apart” among the acceptable grounds for divorce and specified the amount of time that a couple must live apart. Finally, in the late 1960s, even this almost groundless ground was dropped when California became the first state—indeed, the first place in the Western world—to adopt “no-fault” divorce. The “grounds” for a divorce became “irreconcilable differences” causing the “irremediable breakdown” of a marriage. What proof was required that irreconcilable differences existed or that a marriage had broken down irremediably? None, other than the declared opinion of one party to the marriage that they did and it had.
This was the most breathtakingly revolutionary feature of California’s nofault law: it allowed unilateral divorce. The wife of a man seeking a divorce could claim that the differences were not irreconcilable or that the marriage could be saved, but these claims counted for nothing in a court of law. If the husband wanted to go, there was nothing she could do to stop him. There was, in short, no right to remain married.
Unilateral divorce tips the balance of power in favor of the person who wants out of a marriage. The person who is happy in the marriage must beg and compromise in an attempt to get the other to stay. Under traditional divorce laws, it was the person who wished to depart who needed the consent of the spouse and who therefore had to beg or compromise. By tipping the balance of power in favor of the person who wants out of the marriage, the unilateral nature of no-fault divorce laws increases the chance that a divorce will occur.
Many people don’t understand this feature of no-fault divorce. When sociologist Lenore Weitzman interviewed divorce lawyers nearly fifteen years after the passage of no-fault, she found that they were still having to explain to their clients that it didn’t matter how rotten their ex-spouse had been. From the legal point of view, their spouse’s behavior was irrelevant to determining whether or not a divorce should be granted; and if a divorce was granted, the spouse’s behavior was irrelevant to determining how the couple’s property should be divided and whether the wife should get alimony. Under no-fault divorce laws, marital property is divided equally, and alimony is granted on the basis of need rather than on the basis of marital guilt.
Thus, under no-fault divorce laws, you can violate your marriage vows and pay no price—or, at any rate, pay a far lower price than you would have had to pay under traditional divorce laws. Having an extramarital affair used to be an expensive undertaking: your exspouse could get revenge when it came time to divide the property or award alimony. Under no-fault divorce laws, you can be a blatantly unfaithful spouse and fare as well in a divorce as if you had been a perfect spouse.
Not only were the grounds for divorce trivialized, but the divorce process itself was streamlined. A divorce might require only a few pages of paperwork and two minutes of court time—unless, that is, one chose the divorce-by-mail option, in which case no court appearances were necessary. Thus, in its most liberal form, no-fault divorce wasn’t that much different from the process used in the Middle East, where to obtain a divorce the man simply declares, “I divorce you.”
How, one wonders, did no-fault come to happen? Where were the guardians of the family? Where were the political conservatives?
One of the leading political conservatives, Ronald Reagan, was governor of California when that state triggered the no-fault revolution. Reagan and other conservatives backed the law because as originally proposed, the no-fault divorce law would have created a Family Court that would have attempted to reconcile marriages before granting a divorce. Conservatives liked this aspect of the law and thought it would help preserve the family and reduce California’s high divorce rate. At the last minute, though, the Family Court feature was removed from the law. What California ended up with was a law that made it easy for people to separate without first pushing them to reconcile.
No-fault divorce did accomplish one of its original goals: it made the divorce process less acrimonious. In a traditional divorce the two parties typically battled each other, dragging out their spouse’s every fault, both real and imagined, for all the world to see. They declared emotional war on each other, and the legal system aided and abetted their acts of war. Under no-fault, though, it didn’t matter what your spouse had done to you. The courts no longer wanted to hear about it.
California was not alone in making the move to no-fault. In 1971 the Supreme Court, in Boddie v. Connecticut, ruled that divorce is a citizen’s fundamental right. By 1980 all but two states had no-fault divorce laws. To be fair, not all these states went as far as California in liberalizing their divorce laws. By the mid-1980s about a quarter of the states still required mutual consent in divorces. States also differed in whether property divisions and alimony awards could be affected by “guilt” on the part of one of the married persons.
It used to make financial sense for a wife to stay home and take care of the needs of her husband and children. In the (unlikely) event of a divorce, she would be compensated for her years of effort. She might be awarded alimony payments for the rest of her life. If her spouse were the “guilty” party in the divorce, she might be awarded an oversized property settlement. The state saw to it that she would not, as a result of having spent years taking care of her family, subsequently find herself impoverished.
No-fault divorce changed all this. It turned full-time motherhood into a financially hazardous occupation. In the no-fault era, a woman can devote two decades—indeed, arguably the best two decades—of her life to her family only to be dumped when her services are no longer required. In most cases the best she can hope for is temporary alimony payments and an equal division of the marital property. She will have to support herself, but thanks to her two-decade layoff, her employment prospects will be bleak.
If it is difficult to get out of a marriage, there will be more incentive to expend effort in an attempt to make the marriage work. It would be foolish to declare war on your spouse if you knew that “the enemy” was going to be around to retaliate for the next few decades. On the other hand, if you can waltz out of a marriage on a whim—or equally important, if you know that your spouse can waltz out—there will be less incentive to engage in the sort of self-repression and compromise that is typically necessary if a relationship is to endure. The old proverb “Marry in haste, repent at leisure” has, thanks to no-fault divorce, been turned on its head: now the appropriate proverb would be “Marry in haste, divorce in haste.”
The Marriage Law, we must remember, is a part of the Domestic Relations Law of the state, and each state has its own Domestic Relations Law which is a part of the incorporated laws of the state. Congress could not pass a Federal Marriage Law without an amendment to the Constitution that would delegate to the Federal Government the power that is now possessed by the states, that is a, the power to authorize and to sanction marriage. There is no doubt that the present condition in the United States leads to many complications and to much confusion. This is especially true when a couple is married according to the civil law of one state and wishes to have a religious ceremony performed in another. There is nothing to do, however, but to live in accordance with the law and to labor for its amendment and improvement from year to year and eventually for a uniform law for all states in the country.
The law, it is most necessary to stress, makes marriage a civil contract. This means that the consent of parties capable in law of making a contract is essential. Both these terms “consent” and “capable in law” need to be explained. Some men and women, according to the law, are not legally permitted to marry or to enter into a marriage contract. An ancestor and a descendant, a brother and a sister of either whole or half blood, an uncle and a niece, or an aunt and a nephew are not permitted to marry. These marriages are called incestuous and are prohibited whether the persons are legitimate or illegitimate of birth; and, if contracted, these marriages are void.
Other marriages in every state are absolutely void from the outset. A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living unless such former husband or wife has been finally sentenced to imprisonment for life. This law applies even in cases in which the former husband or wife has been sentenced to a maximum term of life imprisonment with the privilege at the end of a prescribed less term of applying to the parole board for a release on parole or for an absolute discharge. A marriage is likewise absolutely void if contracted by a person whose husband or wife by a former marriage is living unless such former husband or wife has absented himself or herself for five successive years then last past without being known to such persons to be living during that time. This is the so-called Enoch Arden law. The law authorizes the court in these cases to enter a formal decree declaring such marriages void; but even without this decree the marriage is regarded as void from its inception.
The phrase “want of understanding” means that one of the parties is mentally incapable of understanding the nature, effect, and consequence of a marriage. This clearly includes idiots and lunatics who at the time of the marriage were insane. As a matter of law the marriage can be annulled only when it can be proved that want of understanding existed at the time. the marriage took place. Mental incapacity arising subsequently to the time of marriage is not sufficient cause for annulment. The general rule also is that a man is presumed sane until the contrary is proved. Therefore, the marriage cannot be annulled on the ground of want of understanding until this presumption has been overthrown by proof that is clear and satisfactory to the court. The fact that a man or woman suffered an attack of insanity before marriage or developed an attack after marriage is not legally a ground for annulment.
In other words, a man or woman who is insane and marries during a lucid interval is validly married, according to the law of the state. Whether a man or woman who is intoxicated or under the influence of a drug at the time of marriage is suffering from a want of understanding is still legally debatable. There can, however, be no debate that such a marriage is immoral and should not be contracted. A marriage may therefore be legal even though it is a violation of morals.
Other marriages are voidable, that is, the marriage may be annulled by the court, if action for annulment is instituted. Voidable marriages include cases in which either party thereto: is under the age of legal consent; is incapable of consenting to a marriage for want of understanding; is incapable of entering into the marriage state from physical cause; consents to such marriage by reason of force, duress, or fraud; has a husband or wife by a former marriage living, and such former husband or wife has absented himself or herself for five successive years then last past without being known to such party to be living during that time.
The phrase “physical cause” means physical incapacity to enter into the marriage relationship, a condition that is usually described as impotence. It must be proved, however, that impotence existed at the time of marriage, has continued to exist at the time of legal action, and is incurable. It may not be difficult to prove that this physical condition existed at the time of marriage, and it may not be difficult to prove that it continues to exist at the time of legal action; but it may be very difficult to prove that the condition is incurable. The new knowledge of glands and their function, the new science of endocrinology, has resulted in miraculous changes in the glandular systems of both men and women. Glands that were dormant have been stimulated into action and maturity, and many cases of so-called impotence have been cured. It is also known now from the findings of psychiatry that many cases of impotence are due to psychological causes and that through psychiatric treatment these causes can be removed and impotence cured. Few physicians therefore are willing to swear in a court action that any case of impotence is incurable. Impotence does not, of course, include sterility. Sterility, in fact, in either the man or the woman is not a ground for the annulment of a marriage.
Force and duress” are self-explanatory: If a person enters into marriage as a result of a threat of personal injury, if a person is abducted and consents to a marriage through fear and in order to secure her liberty, the marriage may be annulled, but the threat must be made by the other party to the contract. A threat made by a third party without knowledge of the other party to the contract is not a ground for annulment. In other words, a marriage to be legal requires the willing agreement of both parties to the contract. “The legal principles governing the authority of the court to annul a marriage on the ground of duress of one of the parties thereto are essentially the same as those applied when the annulment of any other contract is requested upon the like ground, . . . and to be available as a ground for relief it must appear that the duress of the party asking to be relieved was occasioned by the other contracting party, or that he knowingly used or availed himself of such duress as a means of procuring the contract sought to be annulled.” “In an action to annul a marriage on the ground of duress the plaintiff, in order to succeed, must satisfy the court that the duress was occasioned by the other contracting party or that he knowingly used or availed himself of it as a means of procuring the marriage, and it must also appear that the threats of defendant alleged in the complaint constrained the will of the plaintiff and induced her promise.
The term “fraud” has been interpreted by the courts in a number of ways, some of which are clear to the laymen and others of which are extremely puzzling. A marriage will not be annulled for fraud unless the facts misrepresented or concealed go to the very essence of the contract. The marriage will not be annulled unless the misrepresentations were of such a nature as to be calculated to deceive a reasonably prudent person. Nor will a marriage be annulled if the misrepresentations were unintentional; nor if a man falsely represented his character or the extent and value of his worldly belongings; nor if a woman concealed the fact, to quote an interesting decision, that she has a swollen tongue or inflammation of the bladder.
If a man has engaged in criminal activities before his marriage and conceals this fact from the woman he marries, the marriage can be annulled. If a woman induces a man to marry her on the ground that he is the father of her child and this statement is proved not to be the case, the marriage can be annulled. In one case the court annulled a marriage because a woman persuaded a man who believed in spiritualism that the spirits ordered the marriage to take place. A false statement in regard to chastity prior to marriage is not in itself a ground for annulment.
In addition to requiring certain conditions of those who wish to marry, the marriage contract does something else. It confers certain rights upon the two parties to the contract, and it also imposes upon each one certain responsibilities. These rights and responsibilities are implied in the contract and are contained explicitly in the Common Law and the Domestic Relations Law of the state. An interesting thing about these rights and responsibilities is that they change with changing social conceptions and the changing status of women in the course of the centuries. Not many decades ago the Common Law assumed that in marriage the man and the woman are one, and, as one jurist put it, that one is the husband. The woman possessed no legal rights as a wife; she belonged legally to her husband, and what she possessed became his and did not remain hers. As the movement for the emancipation of woman progressed, however, women insisted more and more upon legal recognition and upon legal rights. They have now achieved equal legal status with men in all states, they have also succeeded in ending the ancient fiction that a woman ceases to be a legal entity when she marries. Today she possesses rights that establish her as a person in law.
Parents are the natural and legal guardians of their children. They are legally responsible for their children’s welfare and education. If for any reason they do not fulfill these responsibilities, they can be summoned to court. The law, for example, makes education up to sixteen and in some states up to eighteen compulsory. It is the duty of the parents to send their children to school, and if they fail to do so, the State can compel them to act or punish them if they fail. It is the duty of parents to provide for their children properly and to treat them humanely. If they fail to do this, the State can step in and remove the child or children from the home and custody of the parents. Every now and then we read of a child in some community who is neglected or maltreated. In these cases the parent or parents are usually discovered to be habitual delinquents, though in some cases they are found to be only cruel and inhuman and in a few cases to be suffering with a nervous or mental condition. The State in these cases has the power to remove the child and to arrange for its proper care. The implication clearly is that the child is entitled to protection by its parents, and if parents for some reason are unable or unwilling to give this protection, the State must intervene in the interest of the child. The theory in this matter is that the child is the ward of the State, and the State is the ultimate guardian of the child.
The Divorce Law is not a part of the Domestic Relations Law, but the subject of divorce is so closely associated with marriage that we must include divorce in any discussion of the legal implications of marriage. Among the couples that come to us for counsel we not infrequently find that either the man or the woman has been divorced. It is therefore necessary for us to know something of the conditions of divorce and the procedure that is involved. We must recognize that the contract of marriage that is authorized and sanctioned by the state cannot be dissolved by the two parties without the consent of the state. They may agree to separate and may draw up a separation agreement, which will serve as a legal document in case the terms are not fulfilled by either party. This is known as voluntary separation. Or one or the other may sue for separation through court action and allow the court to decide upon the terms of separation including allowances and the custody of children and other matters. But their marriage contract cannot be abrogated except by a court of jurisdiction.
The battle to secure legal rights for women has been long and arduous and is far from over. Women were not accorded rights under the U.S. Constitution because in the Founding Fathers’ political context women did not exist as actors in civil life. Not until 1971 did the United States Supreme Court use the equal protection clause of the Fourteenth Amendment to strike down a statute as being discriminatory on the basis of sex. During most of the 19th century women could not enter into a contract or own property. Custody was almost always awarded to fathers, who were seen as having a property right in their children. Wives were the property of their husbands. Until well into the 20th century women could not vote or serve on juries, but they could be denied jobs solely because they were women, be paid less than men for doing the same work, and be fired when they became pregnant. Women were denied credit and equal access to education. Abortion and in some states even contraception were illegal. Wives who failed to follow their husbands anywhere they wished to go could be divorced for abandonment. Husbands were awarded almost all family property at divorce. Rape victims were cross-examined on their entire sexual histories. Domestic violence and sexual harassment were concepts that did not even exist.
Despite the great progress made over the last 20 years in reforming the laws that particularly affect women, in the courts today women must still contend with problems ranging from demeaning behavior on the part of judges, lawyers, and court personnel to outright judicial unwillingness to apply and enforce the new laws so as to effectuate their remedial intent. Minority group women may bear the double burden of sex and race discrimination, or they may find themselves denied effective access to the courts for want of a skilled interpreter.
The court system is difficult to navigate on one’s own, but lawyers are expensive. Women as a group are poorer than men, and even women who are apparently well off are usually poorer than their husbands if not totally dependent on them for their economic status. In a contest for support enforcement or a change of custody, the man’s deeper pockets place the woman at a significant disadvantage. Single mothers are also often denied meaningful access to the courts because of the Reagan administration’s sustained attack on funding for the Legal Services Corporation. Two-third of Legal Services’ clients are poor women seeking legal assistance for matters such as welfare, housing, domestic violence, divorce, child support, and social security–a fact not often recognized in discussions of women’s issues. The legal services first cut were those for family law matters, because scarce funds had to be dedicated to criminal defense work.
The issues that bring a single mother to court are usually family law issues such as child and spousal support, custody, or domestic violence.
These issues are disfavored by the legal system, which prefers to focus on enhancing commerce, an area in which it is easier to maintain the fiction that law is pure, rational, objective, abstract, and principled. Although family law cases are a significant, if not the major, category of cases on every state’s civil docket, every law school requires students to take courses in contracts, real property, and torts (civil wrongs); only one, however, requires family law. Some judges go to great lengths to avoid being assigned to hear matrimonial cases. In some states the family courts receive small shares of the judicial system’s budget, despite the enormity of their caseloads, and family law is seen as not “real law” but the area in which to dump less competent lawyers who yearn to be judges and to whom political favors are owed. The judicial system’s effort to move family law cases out of the courts and into alternative dispute resolution is also of concern to women’s rights advocates. After decades of struggling to have the law and the courts deal seriously with these issues, these advocates are not pleased to see them being reprivatized, decided in a forum in which there is no record made for a possible appeal and thus no accountability.
Gender bias is an age-old, multifaceted problem. It encompasses stereotyped thinking about the nature and roles of women and men, society’s perception of the value of women and men and what is perceived as women’s and men’s work, and myths and misconceptions about the economic and social realities of women’s and men’s lives. Each aspect of gender bias creates problems for women in the courts, particularly for single mothers. A judge’s stereotyped belief that a good mother is at home full-time may cost the mother in the paid work force custody of her children.
Devaluation of women as individuals is revealed in judicial indifference to domestic violence and the enforcement of support awards. Devaluation of women’s unpaid work as homemakers and mothers is reflected in divisions of marital property at divorce in which the wife is awarded a much smaller share than the husband. Myths and misconceptions about women’s access to well-paying jobs and the costs of child raising result in minimal child support awards that impoverish women and their children.
Divorce in the Courts
The termination of a marriage with minor children has several legal aspects: division of marital property, custody, spousal and child support, and the enforcement of those awards. Although most divorces are resolved through negotiated settlements rather than trials, these settlements reflect what lawyers believe they would obtain at trial, based on those cases which are fully litigated. Law reform efforts by women’s rights and family law advocates over the last 15 years have created a gender-neutral statutory framework for divorce which, when applied with concern for the actual personal and economic circumstances of the parties and their children, can be equitable.
Access to the Courts
The woman who becomes a single mother by virtue of divorce effectively assumes that status from the moment the decision to divorce is made by either party. Because the costs of litigation are enormous, the question of how the divorce itself will be paid for is critical. Although the laws in most states provide that the court is to award the nonmonied spouse counsel and expert fees sufficient to permit the effective litigation of the issues, this rarely happens.
For many single mothers, who are almost always poorer than their husbands, the entire divorce process is shaped by the inability to afford proper representation. Extremely few sources for free or low-cost legal assistance are available in divorce litigation. The lawyer a woman retains must often curtail activities such as pressing the husband for full disclosure of his financial assets–something that many men hide with great success during divorce litigation–because the woman cannot pay for the hours necessary to develop that information. If the family has any assets such as a business or investments, a properly conducted case requires appraisal by accountants and other financial experts. This, too, the woman finds difficult to afford. Knowing that women can rarely afford lengthy divorce litigation, some fathers engage in what is called “custody blackmail”–that is, they threaten to sue for custody, which they do not want, as a way to force the woman to reduce or abandon her claims for child and spousal support. Even when they can afford counsel, many women report extreme dissatisfaction with their attorneys’ attitudes and the quality of representation.
Although mediation is presented as a less expensive, less emotionally damaging way to conduct a divorce, it, too, has drawbacks for women. Mediation works best between parties of equivalent power. When the female party is less worldly, poorer, truly afraid of losing custody, and perhaps intimidated by a spouse’s psychological or physical cruelty, as is often the case for women, she is far more likely to compromise in order to satisfy the mediator, even though the “compromise” is in fact a one-sided bargain. Divorce mediation that is effective for women requires mediators aware of and skilled in overcoming these gender-based power imbalances, not to mention their own gender-based biases. The sex of the mediator, like the sex of the judge, is no guarantor of sensitivity to these issues.
Division of Marital Property
Marital property generally means all property–homes, cars, clothing, furnishings, businesses, savings, investments–that the couple has acquired during the marriage. Nine states are community property states and by law must divide all marital property in half. The other states divide property according to “equitable distribution”–a legal construct that gives the judge power to determine what percentage of the property and debts should be awarded to each partner, regardless of whose name is on the deed, bank book, loan form or other indicia of ownership. Some states require judges to divide the property equally unless there are important reasons for an unequal division. Most states have a list of factors that the court is to take into account in dividing the property, such as the duration of the marriage; the age, health and income of the parties; and the contributions made by one party as a spouse, parent, wage earner and homemaker to the career or career potential of the other. Some states simply require the judge to divide the property “equitably.” In all equitable distribution states, judges have great discretion in dividing the property, and there is substantial evidence that women are often shortchanged.
Many judges do not see the unpaid work a woman performs as homemaker and mother as having contributed significantly to the acquisition of marital assets and as being equal in value and importance to a husband’s paid work outside the home. There is insufficient recognition of how women contribute to their husband’s earning capacity–often the only true asset of the marriage–by keeping the family’s emotional motor running and making it possible for him to focus on his job, career, or business without worrying about how his children are getting to the doctor or whether he will have a clean shirt to wear. (Although men are increasing their participation in homemaking and child care, repeated studies show that women still bear the majority of these responsibilities.) The fact that most women today work full- or part-time outside the home and thus hold down two jobs, as wage earner and homemaker, also often goes unrecognized. Even when husband and wife do the same work, the wife’s effort may go unrewarded. Farm wives find that some judges disregard the fact that the wife has labored right alongside her husband to make their farm viable. Another factor disadvantaging women in property division is that often the court finds a way to keep the husband’s business intact but has no qualms about ordering the sale of the home–in effect the wife’s business–whether immediately or as soon as the children are 18.
There is a widespread myth that the award of alimony (also known as maintenance and spousal support) to a wife at divorce is the norm. This is not true now and never was. When increasing numbers of women began to enter the paid work force in the late 1960s, the stage was set for judges to act on their reluctance to award permanent alimony.
Short-term alimony does have its place. It is not wrong for the courts to encourage women to become self-supporting, both for their own self-interest and self-esteem and to eliminate repeated litigation about the modification and enforcement of awards. Studies have shown that women provided with sufficient rehabilitative alimony to obtain meaningful education and training are in a much better financial position a few years after divorce than are women whose economic circumstances force them to take the first job they can find. But short-term alimony is not appropriate for the older, long-term homemaker who lacks skills to make her marketable and who will never be able to make up for the years she invested in unpaid homemaker work for the benefit of her family. Even for younger women who are in the paid work force or who have some expectation of success when they join it, fairness may require a combination of rehabilitative and permanent alimony to avoid the kind of stark post divorce economic inequities.
The federal Child Support Enforcement Amendments of 1984 require each state to enact a variety of mechanisms for enforcing child support and to adopt nonbinding quantitative guidelines for support levels or lose federal funding for the Aid to Families with Dependent Children (AFDC) program. Although passage of these amendments was a significant victory for single mothers, it is too soon to know what their impact will be, and the question that must be asked is, What happened in our court system that made it necessary for the federal government to step in to what had always been a state preserve? As with alimony, the regrettable answer is that not only are many judges uninformed about women’s earning capacity and the true costs of child raising, but among some judges there is an attitude of protectionism toward men and their money and indifference to the financial struggle of women and their children.
Legally, both parents are responsible for the support of their minor children. If the parents are divorced or have never been married to one another, state laws provide that the noncustodial parent shall make payments to the custodial parent for the support of the child in accordance with the child’s needs and the standard of living the child would have enjoyed in a two-parent home. Parents may make a private agreement, enforceable in court, as to the amount and schedule of these payments, or they may be ordered by the court. The history of child support has been that awards do not remotely reflect the true costs of child raising or the parents’ incomes. Because children live with their mothers after approximately 90 percent of divorces and in almost all paternity situations, even if the full amount of the award is paid–a rare occurrence–the mother must scramble to make up the difference between payment and need.
Although it is widely believed that it is only fathers for whom gender bias is a factor in custody decisions, mothers, too, may be affected by judges’ stereotyped thinking about the true nature and role of women. The cultural stereotype of the good mother is the chaste, selfless woman who is at home and is the caretaker of her children. Women may be deprived of custody because of social relationships and life-styles that are acceptable for men.
A single mother need not even be a careerist to be deprived of custody. Merely working outside the home puts her at risk. Some judges believe that any woman at home is better than a mother at work, so when fathers remarry and tell the court they now have a wife at home full-time and can provide a proper environment for the child, there are judges who go along with this and switch custody. They see no irony in the fact that the father, like the mother, is turning his child over to a caretaker while he goes to work, because that is what men are supposed to do. This woman in-the-home standard amounts to a paternal preference because rarely is the woman who has been a full-time homemaker awarded sufficient spousal and child support to permit her to remain a homemaker, and men 35 to 44 remarry twice as often as women.
Another growing, unstated, paternal preference is the award of custody to the parent with more money, regardless of who has been the primary caretaker of the child or whether the father has a history of violence. Because fathers almost always are in a stronger financial position than mothers, making money the determinative factor amounts to a paternal preference.
The mother who initiates a divorce and seeks custody because she discovers that the father is sexually abusing the children faces particular risks. Some judges simply do not want to believe that sexual abuse and incest are realities, and their attitudes may be compounded by mental health and social work professionals. Thus, if the woman reveals her grounds for wanting the divorce, she may be branded as paranoid or as inventing stories in order to deprive the father of access to his children. Not merely unsupervised visitation but custody itself may be awarded to the father. Experts in the area of child sexual abuse often counsel women not to acknowledge what they know and to seek divorce on other grounds in order to avoid this problem.
The welcome facts that fathers are participating more in child rearing and that there are parents who genuinely want joint custody and manage it well also have negative consequences for the single mother. Some judges are so taken with the image of the new father that they award custody to the father who only became an active parent at the time of separation. In some cases there may be good reasons for this, and society as a whole should stop stigmatizing mothers who have given years of daily care and would like voluntarily to turn that responsibility over to fathers. However, in most cases the father’s sudden interest should not be decisive and some states have adopted a “primary caretaker” rule under which, barring unusual circumstances, custody is awarded to the parent who has taken primary responsibility for daily, ongoing care of the child. This rule minimizes both faddish custody awards and the incidence of “custody blackmail,” described above, because the law provides much greater predictability than a generalized “best interests of the child” standard.
For the single mother the problems with imposed joint custody are several. Usually joint custody means that although both parents are responsible for making decisions about the child’s welfare, principal physical custody is with one parent, usually the mother. Yet courts are cutting child support awards in joint custody cases as if the mother did not have to continue providing space, food, clothing, etc. for the child on a virtually full-time basis. Imposed joint custody also means that parents who do not get along must agree on decisions about their children. Fathers often use imposed joint custody as a means to continue harassing their former wives, and much repeat litigation is generated, as mothers, must seek court approval for everything from braces to special education.
If you are seeking custody of your children, contact an experienced Salt Lake City Utah divorce lawyer. Custody is not automatically given to the mother. Courts in Utah consider many factors when deciding which parent gets custody of minor children.
The best alternative to court is mediation. In certain counties in the United States mediation may be mandated for custody or visitation disputes once divorce papers are filed. One need not wait for a mandatory session, as a private mediator can be hired. Inquire if the mediator is a member of the American Academy of Family Mediators, which will help assure the individual’s training. The court system may also offer mediation sessions even when they are not mandatory. A family mediator can help settle all matters relating to custody and visitation outside of court. Once an agreement is reached, it is simply put into legal language and filed. The process is much less expensive than attorney fees and court costs, and it greatly increases the chance of a smoother separation, since the mediator seeks to have both partners be as satisfied as possible with the result. The mediator also helps to ensure a continued relationship with the children for both parents.
On May 5, 2005, a law took effect in Utah that required mandatory mediation for contested divorces. Speak to an experienced Salt Lake City Utah divorce lawyer to know about the mandatory mediation requirement in Utah.
Child support is set in the United States by federally mandated state guidelines. Call the office of child support enforcement to obtain a copy of the guidelines. Whether one becomes a custodial parent, a noncustodial parent, or a joint-custody parent, it helps to know in advance how things will look financially. An experienced Salt Lake City Utah divorce lawyer can assist you with your child support battle.
Consult with an experienced Salt Lake City Utah divorce lawyer to know how you can get visitation rights. Never assume that because you are the non-custodial parent, the court will automatically grant you visitation rights.
Even when there is joint physical custody, visitation is an important issue. The key to a continued parental relationship and to a separation that is less stressful for the children is advance planning. Emergency restraining or protective orders often deal with visitation in a general way, and what seems temporary often has a way of becoming permanent under law. Judges do not like to force children through too many changes in residence or lifestyle.
Many court jurisdictions specifically define what is meant by “reasonable visitation.” It is important to obtain a copy of the court’s visitation guidelines before a partner leaves the home. There may be special considerations that need to be addressed in even a first hearing. Vague and general final visitation orders should especially be avoided by a partner leaving an abusive situation. Precisely set times for pickup and delivery, prohibitions against verbal abuse of the other parent in the presence of the children, and remedies or consequences for late pickups or non-delivery are just some of the issues that should be answered. Supervised visitation should be considered in cases of child abuse or threat of child abduction. Attention to the long term should be given in the beginning in order to make return trips to court less likely.
Separating parents’ classes, books on making separation less traumatic for the child, the advice of an attorney, legal consumer groups, and mediation are all helpful avenues to be used. The information gleaned will help to construct a workable visitation arrangement. Use the time between a temporary order and a final one to constructively gather information and examples that can be applied to an individual situation.
While visitation is not often easy for the custodial or the noncustodial parent, parents who separate due to domestic violence need to be especially careful not to use the child as a weapon against one another. A large body of research suggests that parental separation in itself can be healthy for the child who benefits by the removal from partner acrimony but that the child can be harmed by continued conflict after separation, especially when drawn into the arguments by being asked to take sides and other reprehensible demands. Children can also be damaged by the loss of a continued relationship with one of the parents. Custody is an adult decision; visitation and adequate financial support are a child’s rights.
The partner who separates from an abusive relationship may justifiably resent and resist continued contact with the other partner for the purposes of visitation. There are alternatives to face-to-face contact, such as exchanges through a third party. Supervised or monitored exchanges can be made, or they can be conducted in a public place such as a shopping mall or police department parking lot. Given time, adequate structure and safeguards, visitation can take place without undue stress for parents or children.
Parents who attempt to block or impede visitation may face legal challenges. For partners who have left an abusive situation, it is vitally important that the child not be drawn into old emotional issues or be used as a means to try to control the former partner. For men, who face a statistically greater likelihood of being noncustodial parents, the abusive former partner may continue to try to establish control through visitation blocking, denial, or using the bait of increased visitation in exchange for favors. Anyone who is denied visitation rights needs to discuss the situation with an attorney. The most important item in any such case is proof; a witness to the denial of court-ordered visitation is vital. It is also important for the child that the noncustodial parent take care not to give up on visitation attempts or fall into the trap of denigrating the former partner to the child. A continued demonstration of caring is vital for the child’s self-esteem. Denouncing the other parent to the child usually backfires, by forcing the child to defend that parent or take on an unfair adult role as a mediator. Support groups for children of separated parents are available in some school districts and provide an opportunity to share common visitation problems and other issues with peers under a counselor’s guidance. Such groups are particularly valuable for a child without siblings.
Taking the Big Step to Leave
Speak to an experienced Salt Lake City Utah divorce lawyer if you are a battered spouse seeking divorce. You must act fast for your safety.
Many of the professionals and volunteers who work with battered spouses report the common phenomenon of remaining past the reasonable expectation of any improvement. The abused spouse may live with the perpetrator for years, until there is the “last straw,” which may not be an incident that is particularly more violent than previous ones but seems to be a final strong internal recognition of the futility of trying to change the other person.
This emotional moment is necessary but has its dangers. Leaving the household in a hurry may have long-term adverse consequences. The phrase “possession is nine tenths of the law” has particular meaning in domestic relations cases. Leaving valued material possessions in the hands of a vindictive spouse could result in their being damaged, sold, or destroyed. Even if the victim believes the children are not in danger, leaving them with the former mate may greatly limit the chances of legal custody later.
If the victim of abuse is still undecided about leaving or waiting for that last straw incident, an emergency exit plan should be drawn up. Such a plan is necessary to ensure a safe temporary haven from a real threat of death or abuse. Unfortunately, for the male victim, domestic violence shelters are not an option except in a very few places, so planning is especially necessary to prearrange a place to stay on an immediate basis—probably with a relative or friend who will readily accept both the victim and the children. Adequate money for transportation and at least some nights of commercial lodging should be set aside privately. Supplies and clothing adequate for children and self should be preidentified, and if one needs to return home to gather belongings, the police should be asked to provide protection.
The restraining/protective order removes an abusive partner from the home. The victim and any children stay. It will need to be proven in a hearing (usually within two weeks) that both parties attend that there has been domestic violence. A man may face a higher standard of proof that he is the primary victim. It is critical for both men and women victims to prepare for a restraining order before one is actually sought.
The first step is to go to the courthouse and obtain information about how the restraining or protective order process works. Emergency restraining order hearings with a judge are usually limited to certain times of the day. These hearings are most often very brief. The victim may get assistance in some localities with a court-appointed advocate. Such an advocate should prove valuable in convincing the judge that the case is serious enough to warrant an emergency temporary order. The victim may need time to schedule an appointment with the advocate in advance of the emergency hearing.
If the police have responded to incidents of domestic violence at the household in the past, copies of those reports need to be obtained and presented at the emergency temporary restraining order hearing and again at the hearing in which the order is extended, changed, or not allowed to continue. The victim needs to be prepared to assist his or her attorney with testimony or credible documentation from other household members, relatives, friends, and acquaintances who have witnessed, seen the results of, or can offer corroborating evidence of domestic violence. Any hospital or physician medical records about injuries should be introduced. If there are observable injuries, photographs of the injuries should be taken and a credible witness or documentation provided as to the circumstances of the pictures.
Thousands of restraining orders are obtained every day in the United States, and the majority are granted without the assistance of an attorney. The male victim, however, faces obstacles unique to his gender. Advice as to which judge and/or advocate who may be more understanding of his plight could be crucial. Knowledge of personnel in the district attorney’s office if criminal charges are sought may also be vital. The male victim in particular should seek out an attorney in advance of the need. Finding an attorney who has had prior experience successfully representing male abuse victims will likely take some extended effort, and in some localities, an attorney with prior experience in such cases may not exist. It may take some time to locate a person with adequate expertise in domestic relations law, who will not hesitate to be a strong advocate and who is aware of any sexism in the system.
Restraining orders and criminal charges are often dropped or ignored by a domestic violence victim following a reconciliation with his or her partner. The victim is relying on promises that it won’t happen again. The dynamic of domestic violence feeds on the regrets of both victim and perpetrator, and there can be no guarantee that there will not be a repeat of a violent episode. The victim should not rely on promises. He or she should demand specific steps before considering returning. These steps should at a minimum include anger management classes and counseling. If alcohol or drug abuse is part of the situation, a comprehensive and completed treatment program should be required.
The primary physical abuse victim should not neglect his or her own specific steps before considering returning. Gathering information through reading and from others about domestic violence should be a priority, including resources directed at abused women, because of the similarities we have discussed. Counseling to better understand the victim’s role in an abusive situation is necessary, not only to ensure that he or she is prepared to break out of roles and patterns of behavior that contribute to a lack of self-esteem typical of abuse victims but also to help identify factors that may contribute to seeking relationships based on domestic violence in the future.
If the victim does return after specific conditions are met, he or she should still be prepared to act quickly with the previously described emergency exit plan and other steps in place. There must be no acceptance of being physically or verbally abused again. One more abusive act must be the final “last straw.” Male victims tend to be particularly dismissive of so-called minor acts, but it does not matter if he has been “not hardly hurt” or has had much worse happen to him on the athletic playing field. It is abuse when it comes from one’s mate. The victim must wrest control from his mate and give it to himself. He must not return to or accept old dysfunctional patterns of behavior in the relationship. Support in leaving does exist. The victim must accept the responsibility and task of finding that support and taking the necessary step of never returning to this or any other abusive relationship again.
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West Jordan, Utah
84088 United States
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