Divorce & Seperation

what is a divorce

The technical definition of a divorce is the legal dissolution of a marriage by a court or other competent body. But for those who have engaged in the process, it is a whole lot more than just the declaration that your marriage is terminated.

Wikipedia defines a divorce as:

[T]he dissolution of marriage, [or] the termination of a marital union, the canceling of the legal duties and responsibilities of marriage and the dissolving of the bonds of matrimony between a married couple. Divorce is unlike annulment which declares the marriage null and void. Divorce laws vary considerably around the world, but in most countries, it requires the sanction of a court or other authority in a legal process. The legal process of divorce may also involve issues of alimony (spousal support), child custody, child support, distribution of property, and division of debt… Divorce can be a stressful experience affecting finances, living arrangements, household jobs, schedules and more. If the family includes children, they may be deeply affected.

Stephen A. Shechtel’s definition of divorce

A modern-day divorce is the application of a legal remedy known as “equitable rescission”. Rescission is the termination or “unmaking” of a contract as if the contract never existed in the first place. To rescind a contract, a party petitions a court to return that party to the position that they occupied prior to entering into that contract. For a divorce, the contract to be rescinded is the contract of marriage. The process to obtain a divorce starts with the filing of a Complaint about Divorce where a party requests that the Court rescinds their contract of marriage.

A little history to lead up to modern day divorce

Because the King was all-powerful, the right to rescind a contract was (as it remains today) discretionary. The King (and today a court) could decline to rescind a contract. Rescission is an equitable (read “equity”) remedy that comes from the time of Kings. Equitable remedies were granted by the Court of Chancery in England, and remain available today in most common law jurisdictions. In many jurisdictions, legal and equitable remedies have been merged and a single court can issue either or both remedies (equity and law were merged in Maryland in 1992). Despite the judicial merger of law and equity, the distinction between equitable and legal remedies remains relevant in a number of significant instances (like cases that involve family law).

In the civil court system, there are two types of remedies: legal and equitable. Legal remedies generally deal with money damages. Equity was developed to introduce fairness in the legal system or where money was not a viable option. In early England, the Kings established “Courts of Law” and appointed Judges to administer the King’s law. The distinction between “law” and “equity” came about because the King’s subjects were seeking an alternative to what they perceived to be unjust rulings by the King’s Judges in these Courts of law. When a ruling by the King’s Judge was deemed by a litigant to be “not fair”, a party would attempt to appeal to the King to do what was “just and right”. As the ultimate ruler, the King held sole and absolute power over all persons and property within his realm. The King was solely responsible for the “just and right” treatment of his subjects.

Eventually, as Kingdoms grew, and as the King’s available time to judge disputes became scarce, the King delegated his rights/duty as the just and right appeal Judge to his Chancellor(s). Early Chancellors were often members of the Church Clergy because they were supposed to be the King’s conscience. As a result of their theological and clerical education and training, Chancellors heavily influenced the development of what is known today as Courts of Equity. Eventually, these “Chancellors” grew to what became known as the “Courts of Chancery”. Today, in many states, equity cases are still heard in Chancery Courts by Chancellors.

The growth of Courts of Equity

By the 15th century, the judicial power of Chancery was recognized. Equity, as a body of rules, varied from Chancellor to Chancellor, until the end of the 16th century. After the end of the 17th century, only lawyers were appointed to the office of Chancellor.

It is said that a Court of Equity attempts to do what is just and right for the party litigants. Equity Court places their emphasis on what the parties know, their conduct, and their motives. It is supposed to be relevant to an Equity Court Judge to determine whether to grant a party litigant the relief requested as being “just and right”.

Maxims of Equity

Over time, Equity Courts acquired several maxims, (a/k/ rules or principles). These maxims of equity work to both assist the good and to frustrate the wrongdoer. Maxims work to limit the granting of equitable relief to an unjust or undeserving party.

The standard that was established for an equity court to guide it in fashioning a decree was: equity attempts to do what is just and right.” To assist the Court in determining what is, or is not, just and right, several maxims of equity were established to be applied by the Court. Some of those maxims include:

1. He who seeks equity must do equity: This is also sometimes referred to as the doctrine of unclean hands. Equity will not reward a wrongdoer. This maxim recognizes the necessity that in order for a party Plaintiff to obtain equitable relief, that party must be prepared to do what is just and right for/to their adversary. In divorce, this includes the right that both parties are to do equity in the settlement/division of marital property.
2. He who seeks equity must come before the Court with clean hands: Equity demands fairness not only from the defendant but also from the plaintiff. It is, therefore, said that “he that hath committed an inequity, shall not have equity.” An Equity Court will not assist a claimant who is in the wrong or acting for improper motives. (As an example: the party who commits adultery cannot petition for a divorce based upon their adulterous affair.)
3. Equity delights inequality: This is the bedrock for the principle of the equitable distribution of marital property on a 50-50 basis.
4. Equity aids the vigilant and will not reward those who slumber on their rights. Not to be confused with modern day statutes of limitations, the Rule of Laches is that a party who suffers a wrong must timely pursue their rights in a Court of Equity or they risk being barred from obtaining relief. (As an example: the party whose spouse committed adultery decides to file for divorce a year later risks having the Court declare that the “injured spouse” slept on their rights.)
5. Equity acts “in personam:” Equity Courts have the power to declare that a party must perform specific acts.
6. Equity never loses jurisdiction. Equity Courts have the ability to retain its power over party litigants well after their underlying case has been resolved. This maxim is the basis for why issues involving children in divorce are not over until the child reaches the age of majority.
7. Equity looks to the intent rather than the form: The law of the Kings was rigid and in most cases, inflexible. The King’s law and the King’s Judges would look to the very letter of an agreement and not parties intentions when contracting. The Equity Courts, however, looked to the spirit and intention of parties at the time of contracting, and not to the letter of the parties agreement.
8. Equity looks on that as done which ought to be done. Courts of Equity look to the acts of the person bound by his conscience and interpret and construe them in such a way that they amount to what ought to be done. Between two parties, where one party has incurred an obligation and undertaken to do something for the other, a court of equity looks on the obligation as being done and as producing the same result as if the obligation or undertaking had been actually performed.

What is a Limited Divorce?

Basically, a Limited Divorce (“a mensa et throro,” Latin for “from bed and board”) is little more than a legal separation. In a Limited Divorce, marital property is not divided. The grounds for a Maryland Limited Divorce are: (1) cruelty of treatment of the complaining party or of a minor child of the complaining party; (2) excessively vicious conduct to the complaining party or to a minor child of the complaining party; (3) desertion; or (4) voluntary separation, if: (i) the parties are living separate and apart without cohabitation; and (ii) there is no reasonable expectation of reconciliation.

What is an Absolute Divorce?

Once legally titled “a vincula matrimonii” (from the bond of marriage) an absolute divorce is the legal termination of a marriage (see rescission above). In an absolute divorce, all marital property is equitably divided; and if there are children born to the parties, issues involving the children are also determined by the Court. The grounds for a Maryland Absolute Divorce are: (1) adultery; (2) desertion; (3) conviction of a felony or misdemeanor in any state or in any court of the United States that has resulted in a sentence of three (3) years or longer; (4) one year (12 month) separation; (5) insanity; (6) cruelty of treatment toward the complaining party or a minor child; (7) excessively vicious conduct.