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花旗国的半边天

An Exploration of Women's Issues

 
 
 

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美国离婚法 (Divorce Law in the United States)  

2011-09-09 02:26:52|  分类: 默认分类 |  标签: |举报 |字号 订阅

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美国离婚法 (Divorce Law in the United States) - 美国马尾妹 - 花旗国的半边天
 虽然有关离婚的法律明显涉及离婚夫妻双方的利益, 但离婚法在传统上一直被定为女性主义的话题。回溯美国过去的父权主义社会,妇女在婚姻中拥有很少权利,有些甚至毫无地位。已婚妇女大多在经济上依赖于丈 夫,这更让人们觉得妇女有责任对丈夫言听计从。不平衡的婚姻地位以及部分法律对离婚的阻碍使许多妇女陷入了不美满甚至扭曲的婚姻里。即使是成功离婚的女性 也经常面临经济困境,因为在家庭财产分配的规定方面,法律的天平往往向男方倾斜。在上世纪,女权主义者为此展开了斗争,要求政府颁布保护和支持女性逃离不 幸婚姻的法律。今天,虽然她们在这场战争已取得了显著胜利,但在离婚法中的性别平等问题却依旧备受争议。


Although laws concerning divorce obviously effect both the male and female parties of a divorcing couple, divorce law has traditionally been considered a feminist issue. Back when American society was decidedly patriarchal, women had little to no rights within marriage. Married women were financially dependent on their spouses, which helped cement the societal expectation that they be dutiful and subservient to their husband's will. This imbalance of marital power along with laws that made divorce difficult to obtain left many women trapped in unhappy and unhealthy marriages. Women who did manage to obtain an divorce often struggled financially because laws regulating the division of marital property almost always favored the husband. Over the past century, feminists have fought for the adoption of divorce laws that protect and support women seeking to escape unhappy marriages. Today, the battle has largely been won, but debate still persists about ensuring gender equality in divorce laws.


In the United States, the specific conditions and terms of a divorce are governed by state law rather than federal law, meaning that divorce laws vary from place to place across the country. Nonetheless, there are certain things that hold true of divorce law everywhere in the U.S. U.S. courts currently recognize two different kinds of divorce, known as absolute divorce and limited divorce. Absolute divorces legally dissolves the marriage bonds between a couple whereas limited divorces, more commonly referred to as separations, terminate a couple's right to cohabitate without officially dissolving the marriage. In some states, couples are required to go through a trial separation for a set amount of time before they have the right to an absolute divorce. States with this requirement usually permit what is known as conversion divorce, in which a separation becomes an absolute divorce after the mandated trial separation period has lapsed.


Until relatively recently, all divorces in the United States were “fault” divorces. In order to obtain a divorce, one party had to prove in court that their partner was responsible for the dissolution of the marriage. Examples of fault included adultery, abuse, or abandonment for a continuous period longer than a year. The requirement of proving that one party was at fault made divorce harder and more expensive to obtain, especially when there were no identifiable reasons for the break-up of the marriage. Some couples may have fabricated stories of adultery or other sources of fault in order to obtain a divorce more quickly. This requirement began to change, however, in 1970 when California became the first state to provide “no-fault” divorces. No-fault divorces are generally faster and easier to obtain because they eliminate the need for evidentiary proceedings. A divorce can be granted in response to a petition by one of the parties without requiring that person to provide evidence of any wrongdoing by their partner. Today, the option of a no-fault divorce is available in all fifty states.


Many people are in favor of no-fault divorce because it recognizes that two people shouldn't be forced to remain in an unhappy marriage simply because there is no concrete example of wrongdoing on either of the parties' part. However, there are some feminists who believe that women stand to lose out from the widespread adoption of no-fault divorce policies. Last year, New York changed its laws and became the last state in the country to allow no-fault divorce. This change sparked debate about the relative advantages and disadvantages of this variety of divorce. The New York chapter of the National Organization for Women (NOW) strongly opposed the legislative change, arguing that the manner which marital property is divided in no-fault divorces could negatively impact women leaving abusive marriages. Whereas a fault divorce would take the abuse into account while allocating resources and determining spousal support, no-fault divorces generally fail to take it into account. In her publication “No Fault Divorce Legislation Hurts Women,” Marcia Pappas of the New York branch of NOW identified a no-fault divorce case in Oregon in which a woman's request for maintenance on the basis of severe domestic violence was denied. The court determined that fault could play no patter in determining the division of resources unless the woman could no longer work because of the abuse. Pointing to this case, Pappas argued that, though no-fault divorce may seem to be beneficial to women, it actually harms those who need to be protected the most in divorce proceedings, battered women.


As the debate in New York over fault/no-fault divorce demonstrates, though the need to make divorce proceedings fair for women is fairly obvious, it is not always so clear how that can best be done.



讨论:你认为在离婚诉讼中过失应起什么作用? (Discussion Question: What role do you think fault should play in divorce proceedings?)


Source:

"Divorce and Separation: An Overview." Legal Information Institute. Cornell University Law 
     Institute, 19 Aug. 2010. Web. 8 Sept. 2011. <http://www.law.cornell.edu/wex/divorce>. 
Pappas, Marcia, Lillian Kozack, and Gloria Jacobs. "No Fault Divorce Legislation Hurts Women."
PDF file.
Sole-Smith, Virginia. "50th State Passes No-Fault Divorce Bill-- But Is It Good For Women?"
Lemondrop. N.p., 21 June 2010. Web. 8 Sept. 2011.

Image:
By Jeff Belmonte from Cuiabá, Brazil (Flickr) [CC-BY-2.0 (www.creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

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