Divorce

Divorce, or the legal dissolution of marriage, is a common occurrence that affects millions of individuals and families throughout the world. The divorce rate in the United States and in much of the Western world is higher than it has ever been. Current estimates in the United States suggest that 50% to 67% of first marriages will end in divorce within 40 years, and the figure is even higher for second marriages. The United States leads the world in the incidence of divorce and in the proportion of children affected by it. In each year since 1970, more than 1 million children are affected by divorce. As of 1994, 4.7 million children lived with a never-married parent, 5.9 million lived with a divorced parent, and 4.8 million lived with a separated or widowed parent. By the year 2000, 25% of people between the ages of 18 and 44 had divorced parents.

It is worth noting, however, that accurate divorce statistics are difficult to determine. Several states (California, Colorado, Indiana, and Louisiana) do not even keep track of the number of divorces granted each year, so statistics are always estimates based on available data. Furthermore, statistics are always based only on legal marriages and do not include dissolution rates of unions in which couples do not legally marry in the first place.

History

Until the late 19th century, divorce was relatively uncommon in the United States. Most marital disruptions occurred as a result of informal separation or desertion, and the majority of marriages lasted until the death of one partner, an event that typically occurred  much  earlier  than  it  does  today.  Divorce rates in this country began to rise shortly after the Civil War and continued on a steadily upward course for over 100 years. In 1867, roughly 5% of marriages ended in divorce. By 1964 the divorce rate for first marriages was 36%. There was a sharp increase in the incidence of divorce from the mid-1960s to the late 1970s, a period sometimes referred to as “the divorce revolution.” In 1965, there were 2.5 divorces per 1,000 population. That rate had increased to 3.5 per 1,000 by 1970 and 4.8 per 1,000 by 1975.

Blaine Fowers, in a recent book examining attitudes  and  expectations  of  marriage,  suggests  that the dramatic increase in the divorce rate in the past 150 years has coincided with changes in our society’s views of marriage. He points out that prior to 1850, “expectations for what we call emotional fulfillment had little to do with whether couples entered into marriage or terminated the union. . . . Contrary to our modern assumption that marriages are made and maintained by love, spouses at this time did not necessarily expect their marriages to be emotionally gratifying so much as to enable them to have an orderly, virtuous life” (pp. 64–65). He further posits that as expectations that marriage should be based on love and should provide emotional fulfillment have risen, the chances that one will feel disappointed in a relationship have also risen. The rising divorce rate in the past century reflects this shift in values.

The women’s movement and other sociopolitical changes of the past 35 years have also contributed to changes in our culture’s views of marriage, parenting, divorce, and custody. Prior to 1970, most state laws defined marriage in a hierarchical manner favoring the husband. Basically, a married woman’s legal identity was submerged in her husband’s. Women were typically required to assume the husband’s name, domicile (permanent state residence), and credit rating. Matters such as obtaining a credit card, taking title to a marital home, or registering to vote could not be accomplished unless husband and wife shared the same last name. Until the mid-19th century and the passage of the Married Woman’s Property Acts, all of a woman’s assets and property became her husband’s upon marriage. Even laws regarding sexual assault reflected the view that the woman herself was the property of her husband, and in most states a married woman could not be raped by her husband because her body belonged to him.

Changes began to occur in the 1960s, including the first “no-fault” divorce laws. Up until the introduction of these laws, divorce was based on an adversarial model in which divorce could not legally be consensual. One party had to show that he or she was not at fault and had not contributed to the “wrong” and that the other party had done something so heinous (typically cruelty or adultery) that it destroyed the marriage. If the grounds were not proven, divorce was not granted. Because of the strict requirements for cruelty or adultery, grounds were often difficult to prove unless there was de facto cooperation from the defendant. Until 1967, the only legal ground for divorce in New York State, for example, was adultery.

Fault-based divorce influenced not only the means by which one could obtain a divorce, but the assignment of property and decisions about the care and custody of children. It was hard to separate evidence for proving grounds for divorce from litigation over custody, alimony, and child support. For example, a Florida statute used to deny alimony to a woman who was proven to have committed adultery.

In 1969, California became the first state to implement a divorce law without any fault-based grounds for divorce. While only a few states have entirely eliminated fault as a basis for divorce, all 50 states have enacted some mechanism for couples to go through an uncontested divorce without assigning blame to one or the other spouse. There is some disagreement in the field about the effects that no-fault divorce have had both on the divorce rate and on the economics of divorce for families and children. Although the divorce rate was rising during the years that no-fault divorce laws were first enacted (1970 to 1976), they have not continued to rise since that time. Many researchers conclude that fault laws were ineffectual and were not fully enforced for many years before the advent of no-fault laws so that the change in law has been a minor factor in the fluctuation of divorce  rates  themselves.  There  is  less  agreement as to the economic effects of no-fault laws. Many researchers believe that divorce has a negative economic effect on women and children. This is due to the fact that women still earn, on average, only 70% of what men earn, and that most divorces still result in mothers caring for minor children. Other researchers point out that divorce negatively affects both men’s and women’s economic status since maintaining two homes is more expensive than managing one.

Typical Divorce Chronology

There are two major methods for obtaining a divorce: doing it yourselves, usually with the help of a manual or divorce kit, and hiring attorneys to help you litigate your divorce. For couples with no children, few assets, and who are basically in agreement about wanting the divorce, the divorce itself is mainly a matter of completing the appropriate paperwork for their state. These couples may choose to negotiate their settlement and file their own papers. Most people use a manual or divorce kit to help them through this process. Since divorce laws vary by state, you must obtain a book or kit with the forms and procedures that will be required for the state in which you reside at the time of the divorce. Of course, having children and assets does not bar you from handling your own divorce, but it does make the process more difficult and complicated. It requires a great deal more negotiation than a simpler situation, but it is also less costly than a contested divorce would be.

Most couples who can do so choose to hire attorneys to handle the divorce proceedings for them. This better ensures that both parties fully understand their rights and obligations during the divorce process.

Although the precise manner in which a divorce proceeds varies from one location to another, most contested divorces follow the following course: One spouse gets a lawyer, who writes up a petition or complaint. The complaint is a legal document that outlines the reasons for the divorce and how the complainant wants to settle financial and custody issues. The petition is then filed with the court. The court ensures that the petition or complaint is served on the other spouse and also serves a summons that requires a response.

The spouse who has not initiated the process must answer the complaint, usually with the assistance of his or her own attorney. The answer outlines the manner in which this partner wants to settle financial and other legal issues. If the served spouse does not answer the petition, the court usually assumes that he or she agrees to its terms. The couple then exchanges information about property and income in order to decide how to divide up property and how to manage child support, custody, and alimony. Sometimes the couple can voluntarily resolve all these issues through mediation.

Mediation  is  the  use  of  a  neutral  third  party who has been specifically trained to help adversaries work out a compromise on issues of disagreement. Mediators often have backgrounds in counseling, law, or financial planning, but they typically receive additional training in doing divorce mediation. The work of a mediator, unlike that of the divorce attorney, is to work on the side of compromise and/or for the best interests of any children involved rather than in the interests of one or the other divorcing partner.

Once a settlement is reached, the agreement is shown to a judge at an informal hearing. The judge will determine whether both parties understand the agreement and voluntarily signed it. If this is the case, and the judge approves the agreement, the couple will be granted a divorce decree that documents the issues to which they agreed. If the judge does not approve it, or if the couple cannot reach an agreement, the case will go to trial.

At trial, the attorneys present evidence and arguments for each side, and the judge decides the unresolved  issues,  including  child  custody,  visitation, child  and  spousal  support,  and  property  division. Once these issues are decided, the judge grants the divorce. Either or both parties may appeal the judge’s decision to a higher court, but it is unusual for appeals courts to overturn a judge’s decision.

Custody

There are a number of considerations that divorcing couples and the courts must make regarding the future care of children (and in some instances, animals or pets) after a marital dissolution. Legal custody of a child is the right and obligation to make decisions about children’s upbringing such as where they will live, what school they will attend, medical decisions, and the like. Physical custody is the right of a parent to have the children live with him or her. Joint custody or shared custody refers to a situation in which both parents share legal and/or physical custody of their children. If parents share physical custody, it means that the child spends a significant portion of time with each parent. Parents who share physical custody almost always share legal custody, but not necessarily the other way around. Sole custody means that only one parent, who is referred to as the custodial parent, has the right to make major decisions regarding the child’s upbringing and also that the child lives with him or her. Usually the noncustodial parent has visitation rights, meaning that he or she is permitted to spend time with the child, but not to have the child living in his or her home. In most states, courts are moving away from awarding sole custody to one parent and are increasingly enlarging the role that the father plays in children’s lives. Much less common is bird’s nest custody, a shared custody arrangement in which the children remain in one home and the parents take turns moving in and out.

The demographic shift away from sole custody arrangements to shared ones are based in findings from the past 25 years that indicate that children do better, both economically and emotionally, when both parents remain closely involved in their lives. Judith Wallerstein and Sandra Blakeslee (2000) cite research indicating that children who have close relationships with their fathers in childhood surge ahead of peers without such relationships in cognitive and social development. As adults, they experience greater empathy and happiness as parents. In contrast, children whose noncustodial parent distances himself or herself from them and who fails to maintain close contact develop much more anxiety, loneliness, and difficulties in adult relationships than do children who maintain a relationship with both parents.

Although  shared  custody  arrangements  seem  to be preferable in most cases to sole custody in terms of children’s adjustment to divorce, they can be extremely difficult to navigate. To work well, joint physical custody requires that parents continue to live near each other, preferably in the same school district, but  minimally  within  easy  commuting  distance  of each  other.  This  requirement  continues  until  all children are at least out of high school, which may limit career or remarriage options for one or both parents if they are committed to the shared custody arrangement. In working out a schedule for sharing custody, parents have to remain flexible and find ways to communicate cooperatively with each other, a task that may seem daunting at times, especially in the early stages of the divorce. It is important to consider the children’s social, athletic, and academic schedules as well as the parents’.

Some couples are unable to navigate these challenges. Carla Garrity and Mitchell Baris (1994), in a book that provides guidance for handling high-conflict divorce, describe five levels of conflict, with escalating levels exacting more emotional damage to children. Minimal conflict couples are able to cooperate on shared custody issues, exercise self-control, and find ways to resolve conflict. Mild conflict is characterized by occasional quarrels or temporary efforts to form a coalition with the children against the other parent, but these efforts are quickly discontinued. Moderate conflict is characterized by increased intensity and duration of fighting and/or attempts to discredit or berate the other parent. At this level, children begin to be seriously affected in a negative way. Moderately severe conflict is characterized by almost constant or daily fights, physical violence, continued litigation, and parental alienation syndrome, in which one parent actively attempts to exclude the other from the children’s lives. Children are almost inevitably scarred by parental conflict at this level. Finally, severe conflict is characterized by all of the problems of moderately severe situations, with the addition of direct threats to the children’s physical safety such as physical or sexual abuse, parental alcoholism or drug abuse, or serious psychopathology. In situations of moderate to severe conflict, these researchers recommend the creation of a parenting plan with the help of a trained mediator or therapist. The parenting plan is designed to contain or reduce parental conflict, ensure compliance with the visitation or custody arrangements in the divorce decree, and ensure that both parents maintain ongoing, but safe, relationships with the children. A parenting coordinator may be required to help the couple implement the plan.

Emotional Stages Of Divorce

Every divorce is unique, and no two people will experience  it  exactly  the  same  way.  Nevertheless, there are clearly definable stages in the decision and recovery process that are similar to stages of grieving other losses. Divorce, even when it is wanted and planned, represents a loss of previously held hopes, dreams, and wishes for the future, as well as concrete losses such as financial stability and a familiar living situation. At  first,  as  people  are  deciding  whether or not to divorce, they typically experience intense ambivalence and uncertainty. The pain of a troubled marriage is weighed against the pain of ending it. People question their own ability to cope and wonder what impact a divorce will have on their future and that of their children.

Once one or both partners make a final decision to leave, emotional reactions often include a combination of shock, numbness, or denial. It is not uncommon to experience some relief as well. Symptoms of shock or denial may include sleeping more than usual, drinking or using drugs, working more than usual, or refusing to believe that the divorce is actually happening. Symptoms of numbness may include an inability to feel or to express emotions. It may be difficult to cry, and difficult even to get through the day’s activities. Physical symptoms such as aches and pains or loss of appetite are also common.

The next stage of recovery is often one of extreme and alternating emotions. This phase is usually at its most intense during the first year after a decision to divorce is made. It is not uncommon to burst into tears or explode in a rage somewhat unexpectedly or with minimal provocation. Anxiety is very common, especially about what to expect, how to handle being single again, and how one will cope financially. Difficulty eating or sleeping, or eating or sleeping too much, are common symptoms. Most people experience guilt about mistakes they made during the marriage, as well as guilt about things they are doing or feeling during the divorce itself. Review work is another common part of the grieving process and involves looking back on your marriage and on your life before marriage to see what you or your partner could have done differently or how the divorce might have been avoided. Feelings of anger, failure, and loss; a sense of being unloved; loneliness; and occasional unexpected feelings of euphoria are all part of this stage.

It is extremely important to find ways to manage these stressful and unpredictable emotions. Many decisions will have to be made during the divorce process that will have an effect on your life for years to come. If you have children, it will be difficult if not impossible to attend to their emotional needs if you have not taken care of your own. It is vitally important during times of extreme change and emotional distress that you exercise, eat healthfully, sleep, and maintain supportive social and spiritual contacts with others. It may be helpful at this time to consult a counselor or therapist as well.

The third phase of recovery is characterized by an increased focus on the self and a marked decrease in emotional pain and volatility. During this stage you may experiment with new interests and activities, find that you are interested in dating again, or realize that you are reconsidering career choices. The final phase is one of integration and a renewed sense of stability. It is a time to integrate what has happened into a new sense of identity. For people with children, a sense of being a new family, either as a single parent or as a parent and stepparent, emerges. Divorce may be experienced now as an opportunity rather than a burden. Regret may be less fraught with intense anger and blame. Relations with the ex-spouse are more likely to be cooperative and friendly.

Children go through emotional phases that are similar to those their parents experience, but for children the emotional upheaval and effects on functioning are often much longer lasting than they are for adults. In fact, there is evidence from several long-term longitudinal studies of children from divorced families that suggest that the emotional impact of divorce on children lasts well into adulthood. The best known and most widely cited of these studies has been done by Judith Wallerstein and her colleagues, who began to study 131 children and adolescents from 60 divorcing families in Marin County, California, in 1971. The children were studied intensively for 6 weeks near the time of the marital separation, and a subset of these children were interviewed again at 18 months, 5 years, 10 years, and 25 years post-separation. Wallerstein asserts that “children in post-divorce families do not… look happier, healthier or more well-adjusted even if one or both parents are happier” (2000, p. xxiii). In fact, children who experience parental divorce, compared with children in continuously intact two-parent families, exhibit more conduct problems, lower academic achievement, more social difficulties, and poorer self-concepts. Adults who experienced divorce as children may have great difficulty navigating romantic relationships and establishing a secure sense of trust and connection to a romantic partner. Some of the factors that may contribute to these phenomena include exposure to financial and residential instability, the absence of one parent and/or parts of the extended family, the inability of the custodial parent to respond adequately to the child’s emotional needs, and continued parental conflict.

Helping Children Cope

A parental divorce is, for most children who experience it, one of the most stressful events they will ever experience. Even when children have been exposed to serious parental conflict, most would prefer that their parents stay together and that the family as they know it remain intact. Although painful to accept, it does help children if their parents realize that their divorce will, at least temporarily, cause great upheaval in their children’s emotional and psychic lives and to take steps to ameliorate it. Accurate information about what is happening and what to expect can help children maintain at least some sense of control and predictability during a time of great change. Parents may think that shielding children from information will protect them from emotional pain, but this is rarely the case. For example, a child who is told that a parent is going on a vacation instead of being told that the parent is leaving the home permanently can later become fearful of any vacation or any temporary separation from a parent. For very young children, using and explaining the word “divorce” is a good idea. For children under 4 years of age, just explaining that divorce means that mom and dad will live in separate homes and that the child will spend time with each of them can give him or her an idea of what to expect. For older children, some explanation and validation of the things they have observed can be helpful. For example, it might be appropriate to explain that the parents have tried hard to resolve their differences but have not been able to do so and so have mutually decided that it would be better to divorce and create two homes. It is important to listen carefully to children’s questions and concerns and make an effort to answer them accurately and empathically. It is particularly important to let children know what to expect in terms of where each parent will live, what the visitation arrangements are likely to be, and whether or not he or she will have to move. It is not necessary or advisable to give children younger than 5 or 6 details about finances, infidelities, or other private matters; however, some explanation of the reasons for the divorce decision can help allay fears that the decision was  unfounded  or  capricious.  For  older  children,  especially teenagers and adults, it may be appropriate to share this kind of information, and it will probably not be a surprise to them.

While it is understandable that parents wish to tell children anything that will help them feel safer and more secure, it is important not to give children false reassurance. If children are told that “nothing will change” or that they will see a nonresidential parent as often as before, they not only know it is untrue, but will face continued disappointment as they experience the inevitable changes that do occur. Reassurances that are more likely to be true might be assurances that both parents will continue to love and care about the children or that they will make every effort to protect them from harm.

Children often feel that they are to blame for their parents’ marital difficulties, and even for the divorce itself. Paradoxically, younger children may feel especially guilty, despite the fact that they have less autonomy and control than teenagers and young adults. The younger a child is, the less capacity he or she has to imagine how an adult might feel or think, or to recognize that parents make choices that are not always directly about him or her. Although it might seem obvious to parents, it is important to assure children that the divorce is not their fault.

One of the most destructive elements of divorce for children’s long-term adjustment is ongoing parental hostility and efforts to make a child choose one parent over the other. Children strongly identify with both parents, so making a child feel that to love one parent is to betray the other can be destructive to the child’s self-esteem and feeling of security. No matter how angry one parent may be with the other, it is extremely helpful to allow the children to maintain warm and loving feelings toward both parents. Parents should never complain about the other parent to the children and should avoid having angry or hostile discussions in their presence. Each parent should encourage visitation with the other parent and should never limit phone or e-mail contact except in the rare instances in which a parent may be abusive to the child.

Parents should never put children in the position of keeping secrets from the other parent, having to spy on the other parent, or having to act as a go-between in matters of finances or legal conflicts. This creates a tremendous loyalty conflict for the child, who is connected emotionally to both parents. Remember that just because you may have ceased to love your spouse, your children have not. These situations create enormous emotional stress for children.

The effects of divorce continue over time, throughout childhood and adolescence and into adulthood. Therefore, parents may find that they have to help their children with the same issues and concerns repeatedly at different developmental stages. For example, a 6year-old child may be satisfied with one answer to questions about why a divorce occurred, but have renewed questions and concerns about it when he or she is 12 and more questions and concerns at 19.

At any age, children’s emotional and financial stability is enhanced if both parents remain actively involved in their lives. In order to do this, it is essential for them to find ways to interact in a cooperative manner. It may help to keep in mind that it is in your children’s best interest to cooperate with your exspouse even if you feel hurt, angry, or betrayed. Each parent should make an effort to spend time with the children during the week as well as on holidays and weekends. This often means arranging custody or visitation in such a way that holidays or weekdays are alternately spent with one parent or the other. If possible, both parents should know who their children’s friends are, who their teachers are, and what they are most interested in doing. Parents may alternate in attendance at school events, sports activities, and the like, or they may both choose to attend these events, but it is helpful for children to feel that both parents are interested in sharing the significant milestones of their lives.

One should try to minimize the number of changes the children experience as a result of the divorce. If it is possible to keep them in the same school and to maintain the home in which they were living before the divorce, that will help. If possible, they should continue with their customary activities and friendships. Parents should encourage children to talk about their feelings, wishes, and fears about the situation. This is not always easy to accomplish. It can sometimes help to read a book together or to discuss the divorce experience that children in a movie or TV show are having.

Most  children  whose  parents  are  divorcing  will have a range of emotional reactions, including fear, sadness, anger, and confusion. Many parents assume that their children are adjusting well to a divorce because they do not express these feelings directly. However, children may exhibit other signs or symptoms of emotional distress, such as poor school performance, withdrawal from social activities, physical illnesses, sleep difficulties, eating problems (overeating or excessive dieting, especially among teens), or  delinquent  activities.  Some  children  become “hyper-responsible” and take on a role of caring for the distressed parents both emotionally and in terms of practical matters such as preparing meals or handling bills. Many parents find that helping a child handle angry feelings, especially anger at the parent, is a particularly daunting task. Parents should help children understand that feelings are signals. Anger can be a signal that something is wrong or unfair. When one’s parents divorce, children typically feel a sense of helplessness and powerlessness since they had no say in the decision. Helping children find ways to express their anger and frustration in a safe and acceptable manner can help. For example, talking about angry feelings, drawing pictures, or playing hard in sports or athletics may be ways of letting go of angry feelings. Allowing children to participate in decisions such visitation arrangements or decorating their new home or room may help them achieve some sense of mastery or control of an uncontrollable situation.

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