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Liberty And Disunion
Three Centuries of Divorce, American Style
October 1971 | Volume 22, Issue 6
After the Revolution and the adoption of the Constitution each American state was a sovereign community so far as matrimonial law was concerned. They proceeded to use this exhilarating freedom in a variety of ways that escape easy generalization. But certain patterns did emerge First of all, by 1860 almost every state had given up the practice of legislative divorce and turned marital separations over to the courts, under statutory guidelines. Part of the reason was sheer self-defense. The amount of committee time involved in investigating a divorce-bill petition was prohibitive But part was in the broad stream of Jacksonian democratization. It was easier for a man without “pull” to get his case onto a court docket than a legislative calendar One result of this development, however, was to freeze divorce into the American judicial mold of adversary proceedings. Each divorce was a dispute to be tried, with someone to be found guilty of misconduct, instead of a no-fault investigation into a human tragedy.
A second trend was toward eliminating bed-and-board divorce. Though it lingered in a few states, most legislators came to agree that a healthy young man or woman legally separated from a spouse but forbidden to remarry would sooner or later almost surely wind up living with a partner, wedlock or no. In the words of a Massachusetts legislative committee that successfully-urged abolition of the practice in 1870, it placed both parties “in a situation where there is an irresistible temptation to the commission of adultery.” By then almost all divorces granted in the United States were absolute.
Finally, there was a move toward broadening the grounds for divorce, especially in New England and the states of the rising West. Drunkenness, conviction of felony, and cruelty were added to insanity, impotence, adultery, and desertion as legitimate grounds for separation. The terms of the statutes became increasingly open to broad construction. Connecticut in 1849 conceded the possibility of divorce “for such misconduct as permanently destroys the happiness of the petitioner.” The Nutmeg State already had a tradition of liberality. Its legislature had granted a divorce to a man whose wife, while sitting on another man’s lap, commanded the husband to go home and take care of the children; and to a wife whose breadwinner put dead chickens in her teapot and wore his boots to bed. Ohio listed “gross neglect of duty” among its causes. Indiana in 1824 adopted an “omnibus clause,” adding to all other stated grounds “any other cause” deemed suitable by the judge. As a result a substantial number of unhappy spouses began to visit Indiana, swear out an affidavit of intended residence, and commence divorce actions. Illinois likewise had rather easygoing practices. In 1867, for example, Lieutenant Joseph H. Sylvester, of the United States Army, was one of many divorce seekers in Chicago and was awarded one on the substantial grounds of desertion by his wife. But later investigation revealed that the affidavits testifying to her abandonment of him were false; that she was notified of the proceeding against her by an advertisement published in the Western Merchants’ Prices Current and by a bill posted on the door of the Chicago courtroom; and that in fact she knew nothing about her husband’s intent until she received a copy of the decree by mail, in New York, where the lieutenant had left her. In 1852 Mormon Utah’s territorial legislature empowered the courts to part couples who could not “live in peace and union together.” Nevada, Wyoming, the Dakotas, and Oklahoma, both as territories and when admitted as states, also had broadly drawn divorce laws. What was more, because of their wandering populations of miners and cowhands, they generally required as little as six months to establish bona fide residence and the right to sue under those laws.
While liberalized divorce codes sometimes worked to the benefit of abused husbands, the general relaxation was part of the work of advancing feminism. Strangely enough, when the medieval Church originally made divorce difficult, it had the effect, intended or otherwise, of enhancing woman’s status. A Christian wife was no heathen slave, to be thrown aside like a useless implement if she proved barren or if her man cast a possessive eye on some young potential concubine. But that was scarcely a problem for American wives in mid-nineteenth century. A more common situation was that of a woman hopelessly, helplessly tied to a drunken brute who was master of her property and her body, and whom she could not escape without becoming “guilty” of desertion, thus sacrificing her right to support and to custody of her children. Changing the law so as to empower judges to free such victims was a humanitarian act, part of the whole pre-Civil War drive toward lightening the burdens of the sick, the imprisoned, the insane, and the enslaved. Even male chauvinist lawmakers could not resist such rhetoric as that of Robert G. Ingersoll: “Is it possible that an infinitely wise and compassionate God insists that a helpless woman shall remain the wife of a cruel wretch:” Can this add to the joy of Paradise, or … keep one harp in tune?”