DIVORCE, ANNULLING MARRIAGES AND ALIMONY.
[Sidenote: Jurisdiction.]
The district court where either party resides, has, jurisdiction of the
subject matter of this chapter. [§3411]. 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, §27, 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.
[Sidenote: Petition.]
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. [§3412.]
[Sidenote: Verification. Evidence. Hearing.]
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. [§3413.] 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.
[Sidenote: Causes.]
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. [§3414.]
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.
[Sidenote: Desertion.]
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.
[Sidenote: Felony.]
A conviction for felony which may be subject to reversal does not
constitute ground for divorce, but such conviction must be final and
absolute.
[Sidenote: Drunkenness.]
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.
[Sidenote: Cruel treatment.]
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.
[Sidenote: Husband from wife.]
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.
[§3415.] 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.
[Sidenote: Cross petition.]
The defendant may obtain a divorce for the causes as above stated, by
filing a cross petition. [§3416.]
[Sidenote: Maintenance during litigation.]
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. [§3417.] 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.
[Sidenote: Attachment.]
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.
[§3418.] 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.
[Sidenote: Showing.]
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. [§3419.]
[Sidenote: Alimony, Custody of children, Changes.]
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. [§8420.] 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.
[Sidenote: Forfeiture.]
When a divorce is decreed the guilty party forfeits all rights acquired
by the marriage. [§3421.] 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.
[Sidenote: Annulling illegal marriages.]
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.
[§3422.] 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.
[Sidenote: Petition.]
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. [§3423]
[Sidenote: Validity determined.]
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. [§3424]
[Sidenote: Children. Legitimacy.]
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. [§3425]
[Sidenote: Prior marriage.]
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.
[§3426.]
[Sidenote: Alimony.]
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. [§3427.]