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is different from that of the defendants at the time the lawsuit begins. The right of an individual to take his or her case into a federal court is assured by Article III, § 2 of the U.S. Constitution. This provision extends the federal judicial power to controver- sies between the citizen of a state and the government of a different state, citizens of a different state, or between a state or its citizens and a foreign government or its citizens. It is put into effect by a statute that limits federal diversity jurisdiction to cases involving a dispute worth more than $10,000. This minimum is intended to keep small cases from clogging the calendars of federal courts. Cases worth less than $10,000 must be brought in a state court even though diversity of the parties’ citizenship otherwise would entitle them to be brought in federal court. The origin and purposes of federal diversity jurisdiction have long been debated. It was created when the Constitution was first adopted, a time when loyalty to one’s state was usually stronger than feelings for the United States. It was undoubtedly intended to balance national purposes with the independence of the states. Chief Justice JOHN MARSHALL of the Supreme Court wrote in Bank of United States v. Deveaux, 9 U.S. (5 Cranch) 61, 87, 3 L. Ed. 38 (1809): However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, … it is not less true that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies … between citizens of different states. Some scholars believe that the opportunity to take business and commercial disputes into an impartial federal court helped to encourage investment in the develop ing South and West. People from the industrialized Northeast felt more secure when their financial transactions in other states were not necessarily at the mercy of local prejudices. Even if diversity jurisdiction did help the economic growth of the United States, many people question whether it continues to be useful. Because these cases require substantial invest- ments of time and energy by the federal judiciary in cases that arise under state law, proposals to curtail or abolish diversity jurisdiction have been introduced repeatedly in Congress since the 1920s. None of the proposals have been adopted, however. FURTHER READINGS Freer, Richard D. 1998. “Toward a Principled Statutory Approach to Supplemental Jurisdiction in Diversity of Citizenship Cases.” Indiana Law Journal 74 (winter). Jacobsohn, Gary Jeffrey, and Susan Dunn, ed. 1996. Diversity and Citizenship: Rediscovering American Nationhood. Lanham, Md.: Rowman & Littlefield. Pickus, Noah M.J. 1998. Immigration and Citizenship in the Twenty-First Century. Lanham, Md.: Rowman & Littlefield. DIVEST To deprive or take away. Divest is usually used in reference to the relinquishment of authority, power, property, or title. If, for example, an individual is dis- inherited, he or she is divested of the right to inherit money. Similar ly, an individual may be divested of his or her citizenship for TREASON. Divest is also spelled devest. DIVIDEND The distribution of current or accumulated earn- ings to the shareholders of a corporation pro rata based on the number of shares owned. Dividends are usually issued in cash. However, they may be issued in the form of stock or property. The dividend on preferred shares is generally a fixed amount; however, on common shares the dividend varies depending on such things as the earnings and available cash of the corporation as well as future plans for the acquisition of property and equipment by the corporation. DIVINE RIGHT OF KINGS The authority of a monarch to rule a realm by virtue of birth. The concept of the DIVINE RIGHT OF KINGS,as postulated by the patriarchal theory of govern- ment, was based upon the laws of God and nature. The king’s power to rule was derived from his ancestors who, as monarchs, were appointed to serve by God. Regardless of misconduct, a king or his heir could not be forced to forfeit the right to the obedience of subjects or the right to succeed to the throne. This concept was formulated to dispel any possibility of papal and ecclesiastical claims to supremacy in secular as well as spiritual matters. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 498 DIVEST DIVORCE A court decree that terminates a ma rriage; also known as marital dissolution. A divorce decree establishes the new rela- tions between the parties, including their duties and obligations relating to property that they own, support responsibilities of either or both of them, and provisions for any children. When a marriage breaks up, divorce law provides legal solutions for issues that the husband and wife are unable to resolve through mutual cooperation. Historically, the most im- portant question in a divorce case was whether the court should grant a divorce. When a divorce was granted, the resolution of continuing obligations was simple: The wife was awarded custody of any children, and the husband was required to support the wife and children. Modern divorce laws have inverted the involvement of courts. The issue of whether a divorce should be granted is now generally decided by one or both of the spouses. Contem- porary courts are more involved in determining the legal ramifications of the marriage breakup, such as spousal maintenance, CHILD SUPPORT, and CHILD CUSTODY. Other legal issues relating to divorce include court jurisdiction, antenuptial and postnuptial agreements, and the right to obtain a divorce. State laws govern a wide range of divorce issues, but district, county, and family courts are given broad discretion in fixing legal obligations between the parties. In early civilizations, marriage and marriage dissolution were considered private matters. Marriage and divorce were first placed under comprehensive state regulation in Rome during the reign of Augustus (27 B.C.–A.D. 14). As Christianity spread, governments came under religious control, and the Roman Catholic Church strictly forbade divorce. The only excep- tion to this ban was if one of the parties had not converted to Christianity before the marriage. During the 1500s, the Protestant Reforma- tion movement in Europe rejected religious control over marriage and helped to move the matter of divorce from the church to the state. European courts granted divorces upon a showing of fault, such as ADULTERY, CRUELTY,or DESERTION. England struggled with the matter of divorce. From 1669 to 1850, only 229 divorces were granted in that country. Marriage and divorce were controlled by the Anglican Church, which, like the Roman Catholic Church, strictly forbade divorce. The Anglican Church allowed separations, but neither spouse was allowed to remarry while the other was still living. The law of divorce in the American colon- ies varied according to the religious and social mores of the founding colonists. England insisted that its American colonies refrain from enacting legislation that contradicted the re- strictive English laws, and a colonial divo rce was not considered final until it had been approved by the English monarch. Despite thes e deter- rents, a few northern colonies adopted laws allowing divorce in the 1650 s. Divorce law in the middle and northern colonies was often curious. Under one late- seventeenth-century Pennsylvania law, divorce seemed a mere afterthought: If a married man committed SODOMY or BESTIALITY, his punish- ment was castration, and “the injured wife shall have a divorce if required .” In Connecticut, divorce was allowed on the grounds of adultery, desertion, and the husband’s failure in his CONJUGAL duties. In the Massachusetts Bay Colony, a woman was allowed to divorce her husband if the husband had committed adultery and another offense. A man could divorce if his wife committed adultery or the “cruel usage of the husband.” After the Revolutionary War, divorce law in the United States continued to develop region- ally. The U.S. Constitution was silent as to divorce, leaving the matter to the states for regulation. For the next 150 years, state legis- latures passed and maintained laws that granted divorce only upon a showing of fault on the part of a spouse. If a divorce were contested, the divorcing spouse would be required to establish, before a court, specific grounds for the action. If the court felt that the divorcing spouse had not proved the grounds alleged, it would be free to deny the petition for divorce. The most common traditiona l grounds for divorce were cruelty, desertion, and adultery. Other grounds included nonsupport or neglect, alcoholism, drug addiction, insanity, criminal conviction, and voluntary separation. Fault- based divorce laws proliferated, but not with- out protest. In 1901, author JAMES BRYCE was moved to remark that U.S. divorce laws were “the largest and the strangest, and perhaps the saddest, body of legislative experiments in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 499 A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce. Finding of Fact and Conclusions of Law At the Matrimonial/IAS Part of New York State Supreme Court at the Courthouse, County, on Present: ___________________________________________________________ X Index No.: Plaintiff, Calendar No.: -against- FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendant. X The issues of this action having ٗ been submitted to OR ٗ been heard before me as one of the Justices/Referees of this Court at Part hereof, held in and for the County of on , and having considered the allegations and proofs of the respective parties, and due deliberation having been had thereon. NOW, after ٗ reading and considering the papers submitted ٗ hearing the testimony, I do hereby make the following findings of essential facts which I deem established by the evidence and reach the following conclusions of law. FINDINGS OF FACT FIRST: Plaintiff and Defendant were both eighteen (18) years of age or over when this action was commenced. SECOND: ٗ The Plaintiff has resided in New York State for a continuous period in excess of two years immediately preceding the com- mencement of this action. OR ٗ The Defendant has resided in New York State for a continuous period in excess of two years immediately preceding the commence- ment of this action OR ٗ The Plaintiff has resided in New York State for a continuous period in excess of one year immediately preceding the commencement of this action, and: a. ٗ the parties were married in New York State. b. ٗ the Plaintiff has lived as husband or wife in New York State with the Defendant. c. ٗ the cause of action occurred in New York State. OR ٗ The Defendant has resided in New York State for a continuous period in excess of one year immediately preceding the commence- ment of this action; and: a. ٗ the parties were married in New York State. b. ٗ the Defendant has lived as husband or wife in New York State with the Plaintiff. c. ٗ the cause of action occurred in New York State. OR ٗ The cause of action occurred in New York State and both parties were residents thereof at the time of the commencement of this action. THIRD: The Plaintiff and the Defendant were married on the date of in the City, Town or Village of , County of , State or Country of ; in a ٗ civil OR ٗ religious ceremony. FOURTH: That no decree, judgment or order of divorce, annulment or dissolution of marriage has been granted to either party against the other in any Court of competent jurisdiction of this state or any other state, territory or country, and that there is no other action pending for divorce by either party against the other in any Court. FIFTH: That this action was commenced by filing the ٗ Summons With Notice OR ٗ Summons and Verified Complaint with the County Clerk on . Defendant was served ٗ personally OR ٗ pursuant to Court order dated with the above stated pleadings. Defendant ٗ defaulted in appearance OR ٗ appeared and waived his/her right to answer OR ٗ filed an answer/amended answer withdrawing any previous pleading, and neither admitting nor denying the allegations in plaintiff's complaint, and consenting to entry of judgment. [ continued ] Hon. Justice/Referee GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 500 DIVORCE Finding of Fact and Conclusions of Law SIXTH: ٗ That Defendant is not in the military service of the United States of America, the State of New York, or any other state. OR ٗ Defendant is a member of the military service of the and ٗ has appeared by affidavit and does not oppose the action OR ٗ is in default. SEVENTH: ٗ There are no children of the marriage. OR ٗ There is/are child(ren) of the marriage. Their name(s), social security number(s), address(es) and date(s) of birth are: Name & Social Security Number Date of Birth Address EIGHTH: The grounds for divorce that are alleged in the Verified Complaint were proved as follows: Cruel and Inhuman Treatment (DRL §170(1)): ٗ At the following times, none of which are earlier than (5) years prior to commencement of this action, the Defendant engaged in conduct that so endangered the mental and physical well being of the Plaintiff, so as to render it unsafe and improper for the parties to cohabit (live together) as husband and wife. (State the facts that demonstrate cruel and inhuman conduct giving dates, places and specific acts. Conduct may include physical, verbal, sexual or emotional behavior). (Attach an additional sheet, if necessary). Abandonment (DRL §170(2): ٗ That commencing on or about , and continuing for a period of more than one (1) year immediately prior to commencement of this action, the Defendant left the marital residence of the parties located at , and did not return. Such absence was without cause or justification, and was without Plaintiff's consent. ٗ That commencing on or about , and continuing for a period of more than one (1) year immediately prior to commencement of this action, the Defendant refused to have sexual relations with the Plaintiff despite Plaintiff's repeated requests to resume such relations. Defendant does not suffer from any disability which would prevent her/him from engaging in such sexual relations with Plaintiff. The refusal to engage in sexual relations was without good cause or justification and occurred at the marital residence located at . ٗ That commencing on or about , and continuing for a period of more than one(1) year immediately prior to commencement of this action, the Defendant willfully and without cause or justification abandoned the the Plaintiff, who had been a faithful and dutiful husband/wife, by depriving Plaintiff of access to the marital residence located at . This deprivation was without the consent of the Plaintiff and continued for a period of greater than one year. Confinement to Prison (DRL §170(3)): ٗ a. That after the marriage of Plaintiff and Defendant, Defendant was confined in prison for a period of three or more consecutive years, to wit: that Defendant was confined in prison on , and has remained confined to this date; and [ continued ] A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce (continued). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 501 A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce (continued). Finding of Fact and Conclusions of Law b. not more that five (5) years elapsed between the end of the third year of imprisonment and the date of commencement of this action. Adultery (DRL §170(4)): ٗ a. That on , at the premises located at , the Defendant engaged in sexual intercourse with , without the procurement nor the connivance of the Plaintiff and the Plaintiff ceased to cohabit (live) with the Defendant upon the discovery of the adultery. b. not more than five (5) years elapsed between the date of said adultery and the date of commencement of this action. (Attach a corroborating affidavit of a third party witness or other additional proof). Living Separate and Apart Pursuant to a Separation Decree or Judgment of Separation (DRL §170(5)): ٗ a. That the Court, County, (Country or State) rendered a decree or judgment of separation on under Index Number ; and b. that the parties have lived separate and apart for a period of one year or longer after the granting of such decree; and c. that the Plaintiff has substantially complied with all the terms and conditions of such decree or judgment. Living Separate and Apart Pursuant to a Separation Agreement (DRL §170(6)): ٗ a. That the Plaintiff and Defendant entered into a written agreement of separation, which they subscribed and acknowledged on , in the form required to entitle a deed to be recorded; and b. that the agreement/memorandum of said agreement was filed in the Office of the Clerk of the County of , wherein Plaintiff/Defendant resided; and c. that the parties have lived separate and apart for a period of one year or longer after the execution of said agreement; and d. that the Plaintiff has substantially complied with all terms and conditions of such agreement. NINTH: ٗ A sworn statement pursuant to DRL §253 that Plaintiff has taken all steps within his or her power to remove all barriers to Defendant's remarriage following the divorce was served on the Defendant. ٗ A sworn statement as to the removal of barriers to remarriage is not required because the parties were married in a civil ceremony. ٗ A sworn statement as to the removal of barriers to remarriage is not required because Defendant waived the need for the statement in his or her affidavit. TENTH: ٗ The parties have agreed OR ٗ the court has determined that ٗ Plaintiff OR ٗ Defendant will receive maintenance of $ ٗ per week OR ٗ bi-weekly OR ٗ per month commencing on pursuant to DRL §236(B)(6)(C). ELEVENTH: The children of the marriage now reside with ٗ Plaintiff OR ٗ Defendant OR ٗ third party, namely . The ٗ Plaintiff OR ٗ Defendant is entitled to visitation away from the custodial residence. The ٗ Plaintiff OR ٗ Defendant OR ٗ Third Party, namely is entitled to custody. OR ٗ No award of custody due to the child(ren) of the marriage not residing in New York State, OR ٗ Other custody arrangement (specify): _________________________________________________________________________________________ ____________________________________________________________________________________________________________ TWELFTH: Equitable Distribution and ancillary issues shall be ٗ in accordance with the settlement agreement OR ٗ pursuant to the decision of the court OR ٗ Equitable Distribution is not an issue. THIRTEENTH: ٗ There is/are no unemancipated child(ren). OR ٗ The award of child support is based upon the following: (A) The children of the marriage entitled to receive support are: Name Date of Birth (B) (1) By order of Court, County, Index/Docket No. dated the Plaintiff/Defendant was directed to pay the sum of per for child support. Said Order shall continue. [continued] GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 502 DIVORCE Finding of Fact and Conclusions of Law OR (2) The adjusted gross income of the Plaintiff who is the ٗ custodial OR ٗ non-custodial parent is per year and the adjusted gross income of the Defendant who is the ٗ custodial OR ٗ non-custodial parent is per year and the combined parental annual income is . The applicable child support percentage is 17/25/29/31/35%. The combined basic child support obligation attributable to both parents is per year on income to $80,000 and per year on income over $80,000. The Plaintiff's pro rata share of the combined parental income is % and the Defendant's pro rata share of the combined parental income is %. The non-custodial parent's pro rata share of the child support obligation on combined income to $80,000 is per year or ٗ per week ٗ bi-weekly ٗ per month. The non-custodial parent's pro rata share of the child support obligation on combined income over $80,000 is per year or ٗ per week ٗ bi-weekly ٗ per month. The non-custodial parent's pro rata share of future health care expenses not covered by insurance, child care expenses, educational or other extraordinary expenses is %. OR (3) The parties entered into a stipulation/agreement on wherein the ٗ Plantiff OR ٗ Defendant agrees to pay ٗ per week OR ٗ bi-weekly OR ٗ per month child support ٗ directly OR ٗ through the Support Collection Unit to ٗ Plaintiff OR ٗ Defendant OR ٗ Third Party, namely . The parties agree to ٗ waive OR ٗ apply the Child Support Standards Act to Combined income over $80,000. The parties have agreed that health care expenses not covered by insurance shall be paid by ٗ Plaintiff OR ٗ Defendant in the amount of ٗ per week OR ٗ bi-weekly OR ٗ per month OR % of the uncovered expenses. The parties have agreed that child care expenses shall be paid by ٗ Plaintiff OR ٗ Defendant to ٗ Plaintiff OR ٗ Defendant in the amount of ٗ per week OR ٗ bi-weekly OR ٗ per month OR ٗ % of said child care expenses. The parties have agreed that educational and extraordinary expenses shall be paid by ٗ Plaintiff OR ٗ Defendant to ٗ Plaintiff OR ٗ Defendant in the amount of ٗ per week OR ٗ bi-weekly OR ٗ per month OR ٗ % of said educational and extraordinary expenses. Said agreement reciting in compliance with DRL §2401-b(h): The parties have been advised of the Child Support Standards Act. The basic child support obligation presumptively results in the correct amount of child support. The unrepresented party, if any, has received a copy of the Child Support Standards Chart promulgated by Commissioner of Social Services Law Section 111-1. The presumptive amount of child support attributable to the non-custodial parent is ٗ per week OR ٗ bi-weekly OR ٗ per month. The amount of child support agreed to ٗ conforms with the non-custodial parent's basic child support obligation OR ٗ deviates from the non- custodial parent's basic child support obligation for the following reasons: FOURTEENTH: The Plaintiff's address is and social security number is . The Defendant's address is , and social security number is . ٗ There are no unemancipated children. OR ٗ There are no health plans available to the parties through their employment. OR ٗ The parties are covered by the following group health plans through their employment: Plaintiff Defendant Group Health Plan: Group Health Plan: Address: Address: Identification Number: Identification Number: Plan Administrator: Plan Administrator: Type of Coverage: Type of Coverage: ٗ The parties have agreed or stipulated OR ٗ the court has determined that the ٗ Plaintiff OR ٗ Defendant shall be the legally responsible relative and that the unemancipated child(ren) shall be enrolled in his/her group health plan as specified above until the age of 21 years OR until the child(ren) is/are sooner emancipated. [ continued ] A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce (continued). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 503 A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce (continued). ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. Finding of Fact and Conclusions of Law FIFTEENTH: The Court entered the following order(s) under Index No(s)./Docket No(s).: __________________ _____________________________________________________________________________________________________________ _ SIXTEENTH: ٗ Plaintiff OR ٗ Defendant may resume use of the prior surname: ___________________________________________ SEVENTEENTH: Compliance with DRI § 177(1) has been satisfied as follows: (A) ٗ The parties entered into a Stipulation of Settlement/Agreement dated __________________________________________ AND: (1) ٗ the stipulation of settlement contains the signed statements of the parties as required by DRL § 177(1). OR (2) ٗ the parties entered into an addendum to the stipulation of settlement/agreement which contains the signed statements of the parties as required by DRL § 177(1). AND (B) (1) ٗ each party has been provided notice as required by DRL § 177(2). OR (2) ٗ the plaintiff has been notified pursuant to DRL § 177(2). Notice to the defendant cannot be effectuated due to the defendant’s whereabouts being unknown. Since the cost of publication would present an undue burden, notice to the defendant is hereby dispensed with. EIGHTEENTH: Registry checks were completed pursuant to DRL §240 1(a-1). CONCLUSIONS OF LAW FIRST: Residency as required by DRL § 230 has been satisfied. SECOND: The requirements of DRL § 177 have been satisfied. THIRD: The requirements of DRL § 240 1(a-1) have been satisfied. FOURTH: ٗ Plaintiff OR ٗ Defendant is entitled to a judgment of divorce on the grounds of DRL §170 subd. ____________ and granting the incidental relief awarded herein. Dated: _____________________ _____________________________________________________ J.S.C./Referee (Form UD-lO - Rev. 4/09) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 504 DIVORCE the sphere of FAMILY LAW which free, self- governing communities have ever tried.” In 1933 New Mexico became the first state to allow divorce on the ground of incompati - bility. This new ground reduced the need for divorcing spouses to show fault. In 1969 California became the first state to completely revise its divorce laws. The California Family Law Act of 1969 provided, in part, that only one of two grou nds was necessary to obtain a divorce: IRRECONCILABLE DIFFERENCES that have caused the irremediable breakdown of the marriage, or incurable insanity (Cal. Civ. Code § D. 4, pt. 5 [West], repealed by Stat. 1992, ch. 162 [A.B. 2650],§3[operative Jan. 1, 1994]). In divorce proceedings, testimony or other evidence of specific acts of misconduct were excluded. The one exception to this rule was where the court was required to award child custody. In such a case, serious misconduct on the part of one parent would be relevan t. California’s was the first comprehensive “no- fault” divorce law, and it inspired a nationwide debate over divorce reform. Supp orters of no- fault divorce noted that there were numerous problems with fault-based divorce. Fault-based divorce was an odious event that destroyed friendships. It also encouraged spouses to fabricate one of the grounds for divorce required under statute. No-fault divorce, conversely, recognized that a marriage breakdown might not be the result of one spouse’s misconduct. No-fault divorce laws avoided much of the acrimony that plagued fault-based divorce laws. They also simplified the divorce process and made it more consistent nationwide, thus obviating the need for desperate couples to cross state lines in search of simpler divorce laws. In 1970 the Commissioners on Uniform State Laws prepared a Uniform Marriage and Divorce Act, which provides for no-fault divorce if a court finds that the marriage is “irretrievably broken” (U.L.A., Uniform Marriage and Divorce Act §§ 101 et seq.). Such a finding requires little more than the desire of one spouse to end the marriage. Many state legislatures adopted the law, and by the end of the 1970s, nearly every state legislature had enacted laws allowing no- fault divorce, or divorce after a specified period of separation. Some states replaced all tradi- tional grounds with a single no-fault provision. Other states added the ground of irreconcilable differences to existing statutes. In such states, a divorce petitioner remains free to file for divorce under traditional grounds. Most states allow the filing of a divorce petition at any time, unless the petitioner has not been a resident of the state for a specified period of time. Some states require a waiting period for their residents. The waiting period can range from six weeks to two or three years. Illinois and South Dakota maintain the strictest divorce laws. In Illinois, a marriage may be dissolved without regard to fault where three conditions exist: the parties have lived apart for a continuous period of two years; irreconcilable differences have caused the irre- trievable breakdown of the marriage; and efforts at RECONCILIATION would be impracticable and not in the best interests of the family (Ill. Rev. Stat. ch. 750 I.L.C.S. § 5/401(a)(2)). In South Dakota, irreconcilable differences are a valid ground for divorce, which suggests some mea- sure of fault blindness (S.D. Codified Laws Ann. § 25:4-2). However, irreconcilable differences exist only when the court determines that there are “substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved” (§ 25:4-17.1). In Minnesota, the statute covering dissolu- tion of marriage reads like a primer on no-fault divorce. Minnesota Statutes Annotated, Section 518.05, defines dissolution as “the termination of the marital relationship between a husband and wife” and concludes that a divorce “shall be granted by a county or district court when the court finds there has been an irretrievable breakdown of the marriage relationship.”“Irre- trievable breakdown” is left undefined in the statute. In Texas, the no-fault statute is titled “Insupportability.” This law provides that on petition by either party, “a divorce may be decreed without regard to fault if the marriage has become insupportable because of discord or conflict of personalities” that destroys the purpose of marriage and renders reconciliation improba- ble (Tex. Fam. Code Ann. § 3.01 [West]). No-fault is not without its detractors. Some critics argue that strict, no-fault divorce can provide a cover for serious marital misconduct. By refusing to examine the marital conduct of parties in setting future obligations, some states prevent spouses, usually impoverished wives, from exposing and receiving redress for TORTIOUS or criminal conduct. In response to this problem, the vast majority of states have GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 505 abolished statutes that preven t one spouse from suing the other. However, tort claims for marital misconduct are often treated with suspicion, and juries are seldom eager to settle marital discord. A ma rital tort claim is also subject to business judgment: If the case does not appear cost-effective, an attorney might be reluctant to accept it. Fault has survived in some aspects of divorce proceedings. It was once relevant to a decree of divorce and irrelevant to such matters as child custody and property divisions. Under current trends, marital misconduct is irrelevant to the divorce itself, but it may be relevant to related matters such as child custody, child support and VISITATION RIGHTS, spousal mainte- nance, and property distribution. A movement in a small number of states has sought to reintroduce fault as an element in divorce proceedings. In 1997, Louisiana approved a COVENANT MARRIAGE law that is designed to provide an alternative to the traditional method for obtaining a marriage license. La. Rev. Stat. Ann. §§ 9:272-75, 9:307-09 (West Supp. 2003). Under the covenant marriage law, couples who wish to obtain a marriage license must first enter pre-marriage counseling, and then must provide an affidavit from a marriage counselor stating that they have completed this counseling. Once the couple is married, the covenant marriage does not differ from a traditional marriage until the potential dissolution of the marriage. Before partners to a covenant marriage may divorce, they must complete pre-divorce counseling and must provide an affidavit stating that the counseling has taken place. The statute is designed to make it more difficult to obtain a so-called “quickie” divorce. The introduction of covenant marriage as an alternative to the traditional marriage agree- ment comes in the wake of several studies regarding the implications of divorce on chil- dren. Studies have shown that the economic standard of living for divorced women and children of a marriage decrease significantly after the divorce, while the standard of living for men increases. Likewise, other studies have shown that children of divorced parents are less likely to marry, have less education, and are more likely to abuse drugs and alcohol later in life. In response to these and similar statistics, legislatures considered several means by which they could curb the climbing rate of divorce. Highly restrictive provisions on divorce, includ- ing the elimination of no-fault divorce, failed to pass any state legislature. Louisiana’s co venant marriage law represents a compromise in that it leaves the decision to enter into such a marriage up to the couples. Several states in 1997 and 1998 considered enacting similar laws, but only Arizona and Arkansas have done so. Covenant marriage laws also do not appear popular with couples in the three states that have adopted such laws. According to an article in the New York Times, only three percent of couples in Louisiana and Arizona have chosen to pursue this type of marital agreement, and studies show that tougher divorce laws have failed to gain popularity in those states. More- over, several commentators have noted that the divorce rate in Louisiana and Arizona is not likely to decrease even with these laws in place. Other states that have not enacted covenant marriage laws have considered other methods to discourage divo rce. Several states have included provisions that encourage couples to seek premarital counseling before entering into the marriage. Unlike the covenant marriage laws, these provisions do not mandate such counsel- ing, and they leave the decision to pursue counseling to the individual couples. The various statutes provide a number of incentives for seeking counseling, including, for example, reduction in the cost for a marriage license upon completion of couns eling. Historically, custody of the children of divorcing parents was awarded to the mother. Today, courts exercise their discretion in award- ing custody, considering all relevant factors, including marital misconduct, to determine the children’s best interests. Many parents are able to reach settlements on custody and visita- tion through MEDIATION. Joint custody is a popular option among conciliatory spouses. Child custody is, however, a frequent battle- ground for less-than-conciliatory spouses. In determining child-support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty. However, for pre-school children, the primary caretaker may not be obligated to obtain employment; in such cases, caretaking may be regard ed as being in lieu of financial contribution. All states have enacted some form of the RECIPROCAL Enforcement of Support Act, a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 506 DIVORCE uniform law designed to facilitate the interstate enforcement of support obligations by spouses and parents (U.L.A., Uniform Interstate Family Support Act of 1992). Such statutes prevent a nonsupporting spouse or parent from escaping obligations by movi ng to a different state. State laws also make nonsupport of a spouse or child a criminal offense, and uniform laws now give states the power to detain and surrender individuals who are w anted for criminal nonsupport in another state. Property distribution is frequently contested in divorce proceedings. Commonly disputed property includes real estate, PERSONAL PROPERTY, cash savings, stocks, bonds, savings plans, and retirement benefits. The statutes that govern property division vary by state, but they generally can be grouped into two types: equitable distribution and COMMUNITY PROPERTY. Most states follow the equitable-distribution method. Generally, this method provides that courts divide a divorcing couple’s assets in a fair and equitable manner, given the particular circumstances of the case. Some equitable-distribution states look to the conduct of the parties and permit findings of marital fault to affect property distribution. New Hampshire, Rhode Island, South Carolina, and Vermont have statutes that explicitly include both economic and marital misconduct as factors in the disposition of property. Connecti- cut, Florida, Maryland, Massachusetts, Missouri, Virginia, and Wyoming all consider marital conduct in property distribution. In Florida and Virginia, only fault relating to economic welfare is relevant in property distribution. Alaska, Kentucky, Minnesota, Montana, and Wisconsin expressly exclude marital misconduct from consideration in the disposition of marital property. Equitable-distribution states generally give the court considerable discretion as to the division of property between the parties. The courts consider not only the joint assets held by the parties, but also separate assets that the parties either brought with them into the marriage or that they inherited or received as gifts during the marriage. Generally, if the separate property is kept separate during the marriage, and not commingled with joint assets like a joint bank account, then the court will recognize that it belongs separately to the individual spouse, and they will not divide it along with the marital assets. A minority of states, however, support the idea that all separate property of the parties becomes joint marital property upon marriage. As for the division of marital assets, equitable-distribution states look to the mone- tary and nonmonetary contributions that each spouse made to the marriage. If one party made a greater contribution, the court may grant that party a greater share of the joint assets. Some states do not consider a professional degree earned by one spouse during the marriage to be a joint asset, but do acknowledge any financial support contributed by the other spouse, and they let that be reflected in the property distribution. Other states do consider a profes- sional degree or license to be a joint marital asset and have devised various ways to distribute it or its benefits. States that follow community-property laws provide that nearly all of the property that has been acquired during the marriage belongs to the marital “community,” such that the husband and wife each have a one-half interest in it upon death or divorce. It is presumed that all property that has been acquired during the marriage by either spouse, including EARNED INCOME, belongs to the community unless proved otherwise. Exceptions are made for property received as a gift or through inheritance, and for the property that each party brought into the marriage. Those types of property are considered separate and not part of the community. Upon divorce, each party keeps his or her own separate property, as well as half of the community property. True community property systems exist in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. Other states, such as Wisconsin, have adopted variations of the community-property laws. ALIMONY, or spousal maintenance, is the financial support that one spouse provides to the other after divorce. It is separate from, and in addition to, the division of marital property. It can be either temporary or permanent. Its use originally arose from the common-law right of a wife to receive support from her husband. Under contemporary law, men and women are eligible for spousal maintenance. Factors that are relevant to an order of maintenance include the age and marketable skills of the intended recipient, the length of the marriage, and the income of both spouses. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 507 . experiments in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 499 A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce. Finding of Fact and. sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce (continued). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 501 A sample finding of fact and. divorce (continued). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DIVORCE 5 03 A sample finding of fact and conclusions of law, which are part of a judgment and decree of divorce (continued). ILLUSTRATION

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