As she struggled her way into and through her divorce, Denise began to realize that not only hadn’t she really understood what divorce is. She hadn’t really understood her own marriage. Denise knew that she’d been about as naive as anyone else going into marriage. That’s part of the wonder of it, she figured. Everyone going into marriage has a lot to learn, a lot to which to adjust. Denise guessed that she’d seen marriage as pretty much that: two people moving in together, expecting to continue to live together for the rest of their lives assuming things worked out, and each needing to adjust. But now, looking back through the mist and confusion of her divorce, Denise could see that marriage was a whole lot more than just living together and working things out. If it weren’t so much more, then her divorce wouldn’t have felt the way it did.

Definition

It sounds odd, but to deal with divorce as well as one can, one really does need to have a good understanding of what marriage is first. If you don’t think so, then no problem. Skip this chapter. But a little thought about what marriage is may reveal some helpful things to you. You may see from a better understanding of marriage how you can save your marriage or, conversely, why you need to take the steps that you must take in a divorce. The steps of a divorce may make more sense to you, so that you can anticipate them and participate in them, better prepared and more meaningfully. You’ll have marriage regrets. Everyone does. Everyone wishes they could do some things over again, better the second time, and do some other things not at all. But let’s not add divorce regrets, too. The reason why people go through a divorce is because of what a marriage means. Otherwise, if marriage meant nothing, separating couples would just go their own ways. Why go through a divorce if you don’t have to do so?

Decision

A better reason to start a guide on divorce by answering the question of what is marriage, is because that question looms over every divorce. The very thought of divorce implies a decision that the marriage may be over. What is it, though, that is over? What is this marriage thing that one side or the other, or both sides, can decide is over? For something to be over, one must have some sense of what it is. Give some thought to what you believe is over. If it’s only the naive, wondrous feeling with which many marriages blissfully begin, then maybe the only thing that is over is something that generally passes for everyone, for their own good and the good of the marriage. In any case, consider how you, or if your spouse is the party seeking divorce then how your spouse, reached the decision of considering or pursuing a divorce. What was that you or your spouse decided was over? Or to put it another way, how did your relationship together not reflect what you considered to be a marriage? 

Saving

I hope you see now how important your understanding of what a marriage is to the question of your divorce. People divorce because they believe the marriage is over or should be over because it does not meet their terms, conditions, definitions, and ideals of a marriage. The opposite question, too, of how to save a marriage requires the parties to have some definition of the marriage they are saving. Plainly, marriage means something more than simply remaining together, either physically residing together or retaining a common identity as dedicated to one another. Couples generally separate and pursue divorce for reasons, just as they hope to save their marriage by reversing those reasons. Divorce is rarely simply a confirmation that spouses no longer live together nor identify themselves as dedicated to one another. Even the explanation that one hears from time to time that we’ve grown apart implies that a marriage involves adhering to one another.

Objects

As you’ll see again in subsequent chapters, state laws generally require one of the two parties to a divorce action to state in court under oath, words to the effect of the marriage has broken down such that the parties have no remaining prospect together to enjoy the objects of matrimony. See, marriages have objects, goals, standards, commitments. And marriages continue, exist, and adhere for the spouses to attain those things. Marriages should not break down to the point that the attainment of its ideals becomes so unlikely that the parties can no longer envision it even happening. Even from the law’s standpoint, where the law demands only minimums rather than ideals, marriages have points and purposes. To ensure that you’ve done your marriage the service it deserves, and that you can meet the law’s requirements for divorce if that is indeed your marriage’s fated end, be sure that you can articulate those purposes and points.

Devotion

Devotion or devotedness is one essential attribute of marriage, even from the spare requirement the law gives for its dissolution. As stated just above, marriage has the object of holding two together in a purposeful union. As we’ll see again in a later chapter, one of those purposes can include consummation, referring to sexual intercourse. Some states and some religious authorities recognize a lack of consummation as a ground for annulment, referring to a declaration that the marriage is null and void, as if it had never happened. In those circumstances, the couple may be perfectly happy and agreeable without the marriage’s physical consummation. But if either decides that’s not a marriage, an annulment would establish so. Again, physical intimacy isn’t necessary for a marriage. Yet it surely represents, in its sacred rather than profane form, a deep degree of devotion. 

Others

That a marriage involves peculiar devotion to one another finds further proof from the fact that a devotion to others outside the marriage, particularly in the area of physical intimacy, can mark the end of a marriage. It doesn’t have to do so. But sexual devotion to others while married, traditionally known as adultery, was once a legal ground for divorce, back when states generally required a ground. And adultery remains a biblical ground for divorce, recognizing appropriate questions to explore over the adultery’s conditions, context, and circumstances, including the other spouse’s opportunity for mercy, grace, forgiveness, and restoration. Marriages intend deep devotion, generally including around intimacy.

Commitment

Marriages simultaneously presume continuing commitment for the general care of one another. The specifics of that continuing care may vary wildly. It may be nearly all in one direction, for instance when one spouse has a severe disability. But the intention to remain with the other, or return as soon as reasonably possible after military or other assignment or adventure, is a marriage hallmark. Indeed, abandonment is a traditional legal ground for divorce. Abandonment is also a biblical ground for divorce, when the abandonment is by an unbelieving spouse. If your spouse up and disappears, with the clear intention of doing so and clearly intending not to return, the marriage’s objects have ended, whether or not you or your disappearing spouse follow through with a divorce. I’ve helped spouses who had it happen.

Safety

Safety, indeed protection, is for many individuals another one of marriage’s prime purposes. Each spouse should be safe from the other spouse. The law has traditionally recognized abuse within the marriage as a ground for divorce. Abuse is not expressly a biblical ground for divorce but may still be a ground implied from the express grounds of sexual immorality and abandonment. Beatings can sure look and feel like abandonment. Each spouse should also expect the other spouse’s reasonable protection from harm by others. The spouse who pimps out the other spouse or whose drug deals in and around the home expose the other spouse to sexual assault isn’t showing devotion. Marriages need safety, naturally arising out of basic devotion and commitment.

Law

Here is what the law says is a marriage, which you should remember from your own marriage. The parties must be of legal age, typically eighteen years old but with the potential in some states for a younger legal age with parental consent. The parties must be unmarried, meaning no bigamy involving multiple spouses at one time. The parties must have the mental capacity to understand what they’re doing and must freely consent rather than act under coercion. The parties must appear before a designated government official, typically a county clerk, to obtain a marriage license while showing age, identification, and in some states the required state or county residency. And the parties must engage in a religious or civil ceremony before one of the state’s authorized officiants, such as a minister, judge, or boat captain, solemnizing the marriage. 

Solemnizing

As simple as those legal requirements are, don’t shortchange marriage. The ceremony or solemnizing requirement shows that even law recognizes that marriage is more than legalities. Marriage has essential social, cultural, and spiritual elements to it, all referenced in the ceremony. The social and cultural elements are important. We live with the support of society under the influence of culture. The spiritual element is important, too, captured most succinctly in the biblical injunction to let no one divide what God has joined together, for the two have become one. Marriage is a deep union, perhaps the deepest we can experience within our own realm. Separating that union, in whatever form you understand it, is the great challenge of divorce. Don’t underestimate that challenge, and don’t proceed uninformed, and you’ll be doing yourself and others a big service. 

Common Law

Some states also recognize common-law marriage. A common-law marriage is one in which the spouses have not met the above statutory requirements. They have not obtained a marriage license and participated in a ceremony before a recognized officiant. And yet, in those states that recognize common-law marriage, they may have the legal status of a couple married in formal compliance with the statutory requirements for marriage. Although the state laws on common-law marriage vary somewhat, the common requirements are that the couple (1) cohabit as a married couple, meaning with intimacy in consummation, (2) hold themselves out to the public as if married, and (3) have the present intent to be married. Think carefully of these three requirements. Cohabitation without pretending and intending marriage does not count. Nor does cohabiting while pretending marriage, but not intending marriage. Nor does intending and pretending marriage, but not carrying it out with cohabitation. All three requirements must come together simultaneously. And the acts and intention must occur in one of the few states recognizing common-law marriage. Don’t assume anything. Investigate your marriage and marital rights with the advice of a knowledgeable attorney.

Key Points

• Recognizing what a marriage is can help you understand divorce.

• A spouse’s decision to divorce depends on their standards for marriage.

• One doesn’t save a marriage without addressing reasons for divorce.

• Marriage’s main object is the devotion of spouses to one another.

• Devotion in marriage generally requires some exclusion of others.

• Devotion in marriage requires continuing commitment to one another.

• Devotion in marriage generally requires safety with one another. 

• Law’s marriage requirements confirm these objects.

• Those requirements include consent, capacity, and no bigamy.

• Law’s solemnizing requirement confirms social and spiritual objects.

• Some states recognize common-law marriage without a license. 

Read Chapter 3.