DIVORCE, ANNULLING MARRIAGES AND ALIMONY.
The district court where either party
resides, has, jurisdiction of the subject matter of
this chapter. [Se]. State legislatures have
power to grant divorces in all cases where such power
has not been conferred on the courts of the state
by some constitutional provision or legislative enactment.
The legislature of this state has been deprived of
the power to grant divorces for any cause by Article
3, Se, of the constitution, which provides that
“no divorce shall be granted by the general
assembly.” A divorce obtained from a court
not having jurisdiction is absolutely void. The
residence necessary to give the court jurisdiction
must be permanent, or at least of a sufficient period
of time to indicate an intention of continued residence
and citizenship. The general rule is that the
domicile of the wife and children is to be considered
the same as that of the husband, but in a proceeding
for divorce the law recognizes that husband and wife
have separate domiciles, and a valid divorce
may be granted where only one of the parties resides,
but if they reside in different states, the court
having jurisdiction of the party making application
for the divorce may grant the decree, but it has no
authority to make a decree as to the custody of the
children, if they are non-residents of the state where
the decree of divorce is rendered. A decree of
divorce can always be set aside for fraud in obtaining
it.
When the application for divorce is
against a party not residing in this state, the petition,
in addition to the facts on account of which the applicant
claims the relief sought, must state that such applicant
has been for the last year a resident of the state,
stating the town and county in which he has resided,
and the length of his residence therein, after deducting
all absences from the state; that he is now a resident
thereof; that such residence has been in good faith
and not for the purpose of obtaining a divorce only;
and it must in all cases state that the application
is made in good faith and for the purpose set forth
in the petition. [Se.]
All the allegations of the petition
must be verified by oath and proved by competent evidence.
No divorce shall be granted on the evidence of the
applicant alone, and all such actions shall be heard
in open court on the testimony of witnesses or depositions.
[Se.] No divorce can be granted by consent of
parties unless grounds therefor can be shown by competent
evidence, and if collusion or conrivance on the part
of the defendant can be shown, such fact will be a
valid defense.
Divorce from the bonds of matrimony
may be decreed against the husband for the following
causes:
1. When he has committed adultery
subsequent to the marriage;
2. When he wilfully deserts his
wife and absents himself without a reasonable cause
for the space of two years;
3. When he is convicted of felony after the marriage;
4. When, after marriage, he becomes
addicted to habitual drunkenness;
5. When he is guilty of such
inhuman treatment as to endanger the life of his wife.
[Se.]
A previous law of our state provided
that when it was fully apparent to the court that
the parties could not live in peace and happiness
together, and that their welfare required a separation,
a decree of divorce might be granted, but no valid
divorce can now be granted for any other cause than
for some one of those enumerated above; and this is
true, although it may plainly appear that a party has
wholly disregarded his marriage vows and obligations
in various other ways.
[Adultery.]
As the direct fact of adultery can
seldom be proved, when a divorce is asked on this
ground, it will be sufficient if the fact can be shown
by circumstances which would be inconsistent with
any rational theory of innocence, and such as would
lead the guarded discretion of a just mind to the
conclusion of the truth of the facts. The disposition
of the parties may be shown, with the fact of their
being together and having an opportunity to commit
the act.
A reasonable cause for desertion must
be some wrongful conduct on the part of the other
party, and must be of such a serious nature that it
would prima facie entitle the party deserting
to a divorce. If husband and wife mutually agree
to separate, such separation will not constitute ground
for divorce, unless the party applying for the divorce,
in good faith expresses a desire to live with the
other. Where the wife is compelled to leave her
husband on account of inhuman treatment, such as would
entitle her to a divorce, such desertion cannot be
made the basis of proceedings for divorce by the husband,
for in such case he and not she is guilty of desertion,
and this may be alleged by the wife, with other causes,
in seeking a divorce. A wife may be justified
in leaving her husband because of his failure to protect
her from insult and abuse, and when she leaves him
for this cause, her desertion will not be grounds
for divorce.
A conviction for felony which may
be subject to reversal does not constitute ground
for divorce, but such conviction must be final and
absolute.
If a woman marries a man knowing him
to be intemperate, though she does so in the hope
of reforming him, the courts will not interfere after
marriage to grant her relief from the result of her
misplaced confidence, but where the habit has been
acquired subsequent to the marriage and has become
fixed and the husband is habitually drunk, though
not in such condition during business hours, it is
such habitual drunkenness as will entitle the wife
to a divorce.
Cruel and inhuman treatment, to constitute
ground for divorce must be of such a nature as to
endanger life, but need not necessarily consist of
physical violence. Even where no single act or
number of acts can be shown which might cause reasonable
apprehension of harm to life, if the ill treatment
as an entirety is of a nature to affect the mind and
undermine health to such a degree that the life will
be ultimately endangered, it will entitle the injured
party to a divorce. Ungovernable outbursts of
rage, the use of profane and obscene language, applying
insulting epithets to the wife in the presence of others,
acts of cruelty and neglect in sickness, coupled with
failure to provide suitable food and clothing, have
all been held to be such cruelty, which, if long continued,
would result in danger to life. Condonation is
always a valid defense in proceedings for divorce.
If the wrong is once forgiven, it cannot afterwards
be made a ground for divorce, but the mere fact that
a wife continues to live in the same house with her
husband, and does the household work, is not such condonation
as will defeat her action.
The husband may obtain a divorce from
his wife for like causes, and also when the wife at
the time of the marriage was pregnant by another than
her husband, unless such husband had an illegitimate
child or children then living, which was unknown to
the wife at the time of the marriage. [Se.]
In many other states, divorce will be granted to the
husband, for the cause here named, but in no other
state is it provided that in such case, a husband
who had an illegitimate child at the time of the marriage,
unknown to the wife, cannot take advantage of this
fact to obtain a divorce.
The defendant may obtain a divorce
for the causes as above stated, by filing a cross
petition. [Se.]
The court may order either party to
pay the clerk a sum of money for the separate support
and maintenance of the adverse party and the children,
and to enable such party to prosecute or defend the
action. [Se.] In applying for an order granting
temporary alimony it is not necessary to show that
the party making the application is entitled to a divorce.
It is sufficient if it appears that such party is
without means of support and unable to prosecute the
action without such allowance. The fact of marriage
must be either admitted or proved. The court may
allow attorney’s fees in proceedings for divorce
and alimony, but the party against whom the action
is brought, is not liable, if the other party is unsuccessful.
Where the applicant for divorce is ordered to pay a
certain sum of money to enable the defendant to defend,
it he fails to obey this order, the action may be
dismissed.
If it appears that the father is an
unfit person to have the custody of the children,
pending a proceeding for divorce, the court has power
to provide for their custody and maintenance as may
be for the best interest of the children.
A judgment or order for temporary
alimony is a lien upon the property of the person
against whom the order is directed, and such property
may be levied upon by attachment and held to satisfy
the decree of the court. [Se.] Attachment may
be allowed without bond and it may be granted in a
suit to annul an illegal marriage as well as in one
for divorce. It may be levied on the homestead
as well as other property. The disposition of
property by the defendant may also be restrained by
injunction.
In making such orders, the court or
judge shall take into consideration the age, condition,
sex and pecuniary condition of the parties, and such
other matters as are deemed pertinent, which may be
shown by affidavits in addition to the pleadings or
otherwise, as the court or judge may direct. [Se.]
When a divorce is decreed, the court
may make such order in relation to the children, property,
parties, and the maintenance of the parties as shall
be right and proper. Subsequent changes may be
made by the court, in these respects when circumstances
render them expedient. [Se.] In granting a divorce,
full power is given the court over the questions of
permanent alimony and custody of children, and the
amount of alimony will be determined by a careful
consideration of the circumstances of the parties.
The allowance is usually for a certain sum of money,
but the court may set apart a specific portion of
property as alimony. Only in rare cases and under
peculiar circumstances will alimony be granted to
the party in fault. A judgment for alimony may
be made a lien upon specific property, and the court
may declare it a lien on the homestead. The court
granting a divorce and alimony retains jurisdiction
of the same, and upon a subsequent change in the circumstances
of the parties, may modify or change the decree in
relation to alimony and custody of children as may
seem just and proper and for the best interests of
all parties. A suit for alimony without divorce
may be brought, where the wife has been compelled
to leave her husband on account of misconduct on his
part justifying the separation. The disposition
of the children is entirely within the discretion
of the court, and the custody may be given to either
party or may be taken from both and given to a guardian,
if it can be shown that neither parent is a proper
person to care for them. The best good of the
child will be the first and most important consideration
in determining to whom the custody shall be given.
When a divorce is decreed the guilty
party forfeits all rights acquired by the marriage.
[Se.] After a decree of divorce neither party
can have any interest in the property of the other
except that which is granted by the decree, and this
applies to claim for dower in case of survival.
Marriages may be annulled for the following causes:
1. Where marriage between the
parties is prohibited by law.
2. Where either party was impotent
at the time of the marriage.
3. Where either party has a husband
or wife at the time of the marriage, provided they
have not continued to live and cohabit together after
the death of the former husband or wife.
4. Where either party was insane
or idiotic at the time of the marriage. [Se.]
If a person marries who has a husband or wife living
such marriage is absolutely void. In case of
absence of the husband a presumption of death does
not arise until he has been absent seven years without
intelligence concerning him. Where a party is
insane or idiotic, and is therefore incapable of consenting,
a marriage with such person will be void. When
a marriage is absolutely void by law, it is not necessary
to bring an action to annul it, before contracting
a subsequent legal marriage.
A petition shall be filed in such
cases as in actions for divorce, and all the provisions
of this chapter shall apply to such cases except as
otherwise provided. [Se]
When the validity of a marriage is
doubted, either party may file a petition and the
court shall decree it annulled or affirmed according
to the proof. [Se]
When a marriage is annulled on account
of the consanguinity or affinity of the parties, or
because of impotency, the issue shall be illegitimate,
but when on account of non-age, or insanity, or idiocy,
the issue is the legitimate issue of the party capable
of contracting marriage. [Se]
When a marriage is annulled on account
of a prior marriage, and the parties contracted the
second in good faith, believing the prior husband
or wife to be dead, that fact shall be stated in the
degree of nullity; and the issue of the second marriage,
begotten before the decree of the court, is the legitimate
issue of the parent capable of contracting. [Se.]
In case either party entered into
the contract of marriage in good faith, supposing
the other to be capable of contracting, and the marriage
is declared a nullity, such fact shall be entered in
the decree, and the court may decree such innocent
party compensation as in cases of divorce. [Se.]