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Liberty And Disunion
Three Centuries of Divorce, American Style
October 1971 | Volume 22, Issue 6
Appearances may be deceiving, but marriage in the United States looks as if it is in trouble. More couples—primarily young—are living together without the formality of marriage, and more couples—somewhat older and sadder—are ending their existing marriages in the courts. Some see in this the onset of American morality’s decline and fall. “Are we the last married generation?” asked columnist Harriet Van Home in a 1969 essay. “Well, if we are, prepare for anarchy, chaos, and a breakdown in all the civilized amenities.” True, those who dread the imminent death of marriage cannot find statistics of nonmarital pairings to support their fears. Such liaisons are not matters of legal record. But divorces are. And the records of them are coldly explicit. A Census Bureau report early in 1971 indicated that the number of divorced individuals in the population had risen some 33 per cent in the previous decade. While there were thirty-five divorced persons for every thousand married couples in 1960, there were forty-seven in 1970. The parade of couples to the courts to undo in repentance what they earlier wrought in mutual love is getting longer. That lengthened column, to some social critics, is evidence of a fresh disaster heaped by a permissive culture on venerable American institutions. They see a rising divorce rate as ominously in tune with an age of drugs, pornography, and flag burning.
Yet there is no new thing under the sun. In 1934 a Catholic publication lamented: “It is folly to say that the institution of marriage is in danger; the institution of marriage is gone.” In 1927 a woman’s magazine entitled an article: “Divorce for Every Marriage 1938 Prospect.” In 1891 the Nation brooded over the increase in American divorces, a calamity that it ascribed to: the general uneasiness and discontent with the existing constitution of society, to the decay in the belief in immortality and future punishment, to the great development of the means of travel and the migratory habits arising therefrom, to the enlarged consciousness of their rights … among women, and … the real increase of their independence due to new opportunities of self-support.
Four years earlier, in 1887, a New England clergyman had told an audience that in view of the rapidly increasing “evil of divorce” he doubted that there was “any considerable civilized people in the world … taking so great risks with the family as … these United States.” And twenty years before that a church journal warned that divorce was on the march and a time was “rapidly approaching” when “the public sentiment on this point shall be almost wholly debauched.”
Even earlier expressions of the same anxiety might be found. For divorce has long been a focus of debate in the United States, as in other nations inheriting the Judaeo-Christian tradition. On one hand stand those who see marital ruptures not merely in terms of individual pain and tragedy but as threats to marriage itself—a holy institution, the God-ordained source of the family, on which morality and civilization rest. In their eyes liberal divorce practices are dynamite for a responsible society.
On the other side are those who see in marriage simply an arrangement by which couples mate with tribal approval; a means for legitimizing children, sharing duties, and transmitting property and rank. Such “arrangements” may change from generation to generation without threatening the peace of the community. And individuals whose attraction for each other has died with the passing years may separate—with provision for the care of their children—without a feeling of moral leprosy.
While such theoretical debates crackle, unsuccessfully married couples continue to separate in fact—often in fine disregard of the predictions made by prophets on both sides. How these men and women are then dealt with by the law creates the actual weave of divorce practice in any country. In the United States the basic tug between tight and loose divorce laws has been molded by unusual circumstances. Some aspects of American life have encouraged easy separation; others have built up an almost unequalled resistance to it.
American marriage bonds have been loosened by the diversity of backgrounds of an immigrant people and the migratory habits of the pioneers. In addition, marriage and divorce are matters reserved to the states, and the variety of jurisdictions offers many opportunities to the shopper for release from the marital tie. On the other hand, family-worship has been especially intense in the United States. This is because on the frontier the isolated family often was the indispensable carrier of civilized values. Furthermore, religion has played a large role in shaping American popular thought, and the voice of the preacher—whether Protestant circuit rider in the hinterlands or urban Catholic priest has almost always been lifted to insist that what God hath joined, no man may put asunder.
England’s American colonies inherited a complex pattern of divorce. In medieval days the fathers of the all-powerful Church decreed that the sacrament of marriage, once registered in heaven, could not be erased on earth. But even the canon law recognized that fate could create intolerable dilemmas. A spouse might go mad, disappear, or willfully and wickedly desert the marriage or even the Christian faith. In such cases ecclesiastical courts gave a kind of halfway divorce— divortium a mensa et thoro —from bed and board. The recipient was free of obligation to the offending partner but could not wed again. One marriage per lifetime was God’s quota. But to this, too, there was an exception. The Church would grant divortium a vinculo —absolute divorce, with the privilege of remarriage—on the basis that the original marriage had never been valid. (In modern law this would be an annulment rather than a divorce.) Grounds for annulment could be the discovery of force or fraud in arranging the match, failure to have consummated the marriage, or the revelation that the partners were in some way related. Thus, a few kings and nobles with enough money and power, and a strong wish to discard a wife, could find canon lawyers who would discover some appropriate flaw in the distasteful match and cancel it. But not invariably! Pope Clement VII refused to dissolve the marriage of King Henry VIII of England to Catherine of Aragon, and in the ensuing hurricane of royal wrath the Church of England was born.
The new church, as might well have been expected, at first looked rather tolerantly on divorce. But it insisted that only religious authorities could unite and divide couples in marriage, a point of view sharply challenged by the Puritan radicals of the seventeenth century. John Milton, the mighty bard of Puritanism, not only took the position that divorce was entirely the province of the state (in a pamphlet entitled The Doctrine and Discipline of Divorce, Restored to the good of both Sexes from the Bondage of Canon Law and other Mistakes ), but he also suggested that the grounds be broadened. They should include any “contrariety of mind” hindering “the main benefits of conjugal society, which are solace and peace,” because, the author of Paradise Lost declared, the true object of a Christian marriage was not “to grind in the mill of an undelighted and servile copulation.”
When the Puritan Revolution in England ended with the restoration of the monarchy in 1660, the Anglican Church not only rejected this view but hardened its own divorce stand. It granted some bed-and-board divorces, but gave no annulments. The only way for an Englishman to get an absolute divorce was by a special act of Parliament, which would not even consider the case unless he already had an ecclesiastical bed-and-board separation. It was no wonder that between 1700 and 1850 only 229 wealthy, patient, and convincing British subjects achieved such final dissolutions.
The North American colonies felt the effects of this conflict in the mother country. Puritan Massachusetts sturdily insisted that marriage and divorce were civil matters, permitted only justices of the peace to perform marriages until 1692, and granted some forty divorces prior to that date (when a new charter cut down on Massachusetts’ independence). Some of these divorces were given by the legislature, in imitation of Parliament presumably; some by a special court. The first one recorded was given in 1639 to the spouse of James Luxford, for the compelling reason that he was proved to have another living wife. Grounds for other divorces granted later were adultery, desertion, impotence, incest, and a—heartbreaking reality among a seafaring people—long absence with presumption of death. Connecticut and Rhode Island also dispensed legislative divorces before the Revolution on similar grounds Little Plymouth (where the Pilgrim Fathers landed) produced an unusual divorce case when William Tubbs, carried away by veneration for the Old Testament, tried to divorce his wife in terms authorized in Deuteronomy 24:1. (“When a man hath taken a wife, and … she find no favour in his eyes … then let him write her a bill of divorcement, and give it in her hand, and send her out of his house.”) Tubbs handed Mrs. Tubbs such a “bill,” prepared by himself and signed by witnesses. It was disallowed by the authorities, but his case must have been impressive, for they granted him a more judicially defensible regular divorce.
In the southern colonies, however, where the influence of the Church of England was strong, marriage remained the monopoly of Anglican ministers. Divorces could only be granted by bishops’ courts; but since no such courts sat in the colonies, there simply were no divorces.
Thus, from the beginning, America had more than one set of rules for untying the marital knot. And, ironically, it was possible to do so in allegedly grim, Puritan New England but not in Virginia or the Carolinas, supposedly the land of the pleasure-loving descendants of the Cavaliers.
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?”
But the march toward a Zion of easy divorce was not an unchecked triumphal procession. Most divorces were still granted on conventional grounds, like that given to John Pyle of Kentucky in 1819 from Lucinda Woodward, whom he espoused in the faith “that she was a virtuous and chaste woman,” only to find later that she was “sometime advanced in a state of pregnancy with another man.” Moreover, there were holdouts; there was impassioned debate; and as the century ended, there was a definite pendulum swing of reaction. New York, for example, repeatedly defeated efforts to amend its 1787 law, which allowed no grounds for divorce save proven adultery, while South Carolina was even more adamant and made no provision at all for divorce. South Carolina was traditionally a bastion of conservatism (as late as 1860 it still had its legislature choosing the Presidential electors). In New York the political combinations opposing divorce-law changes always held a majority.
In the general clamor of argument over what made he good society, marriage and separation were debated with increasing fervor in the middle third of the century. There were anti-Christian spokesmen like Henry James, Sr. (father of the novelist and the psychologist), who wrote in a newspaper debate: “Jesus Christ may be an excellent practical authority for your and my private conscience, but he should not be writing the laws of social union.” There were rampant feminist individualists like Victoria Woodhull, who advocated that the state keep its hands entirely off the relationships between men and women and who, when taunted with advocating free love, shot back: “Yes, I am a Free Lover. I have an inalienable constitutional, and natural right to love whom I may, to love as long or as short a period as I can, to change that love every day if I please.” There were freethinking political liberals like Indiana’s Robert Dale Owen, veteran of the Utopian community of New Harmony founded by his philanthropist father. Owen pointed out that the existing law allowed a husband to assault and rape his wife nightly with impunity, provided that he supported her—and that this made her a particularly harshly exploited prostitute.
Opposing such ideas were marital conservatives like the New York Tribune ’s editor Horace Greeley (a violent reformer of other institutions), who sputtered in 1852 that liberalizing the laws of divorce would “result in a general profligacy and corruption such as this country has never known, and few of our people can adequately imagine.” It would create a world in which “libertines would resort to marriage as a cloak for lecherous designs,” unterrified by the spectre of prosecution for bigamy and adultery. In 1860 Greeley added that America must beware of the example of Rome, which, “under the sway of easy divorce, rotted away and perished- blasted by the mildew of unchaste mothers and dissolute homes.”
Rome was much on the minds of conservatives in the booming post-Civil War era of expansion. The rush westward, the urban explosion, the rise of factories and a permanent working-class population, heavy immigration- all these seemed to threaten the homogeneous world of small towns and farms, and stable families, that had been America’s strength. Fear was voiced that success would spoil the simple nation born in Philadelphia in 1776, just as empire had supposedly undone the virtuous republic of Cincinnatus. Rome’s easy divorce rules, according to President Theodore Dwight Woolsey of Yale in 1867, were considered a special horror and warning to Americans by those whose anxiety rose with the revelation that the divorce rate was rising more rapidly than the increase of population. The actual numbers were not great (and statistics of divorce were, and to some extent are, extremely hard to collect and interpret). But a jump from just under ten thousand in the country in 1867 to over twenty-five thousand in 1886 was an alarm bell ringing in the ears of those who believed, with the Reverend Samuel W. Dike, of Auburndale, Massachusetts, that “the simple family of Christian civilization … one man and one woman, united in wedlock, together with their children” was the germ of villages, states, and mighty nations, and continually reproduced “the ethical history of man.”
Action was necessary. Conservatives recoiled not only from the figures but from stories of divorces procured by fraud and bribery and from newspaper accounts of marriages broken up for what seemed light and transient causes—the “cruelty,” to cite one case, of a husband whose offense was frequently reading Scripture to his wife to remind her, in St. Paul’s explicit metaphors, of her duty of obedience. “Instead of resisting the erroneous and sinful inclinations of human nature,” wrote one clergyman in 1892, “the State … surrenders to them almost without condition.”
In New England, where forming improvement associations was almost second nature to worried intellectuals, a New England Divorce Reform League was founded in 1881. Four years later it went national, renaming itself the National Divorce Reform League, and in 1897 it broadened its activities to include assaults on “disreputable houses” and other threats to the chastity of both sexes and became the National League for the Protection of the Family. The league lobbied actively for toughening state divorce laws. It wanted longer residence requirements, the prohibition of rapid remarriage after divorce, and strict procedures for notifying defendants whose spouses had gone out of state to seek divorces and for giving them a chance to respond. It wanted high standards set for corroborative proof of charges of adultery or cruelty.
The league succeeded in getting a number of states to adopt such measures and appears to have slowed down the pace of divorce actions in some areas. In addition the league’s tireless secretary, the Reverend Samuel W. Dike, worked effectively to get federal support for the collection of accurate marriage and divorce figures. And the organization launched strong efforts to create uniformity in separation procedures. It sponsored an interdenominational conference of 1903, which failed by only a small margin to adopt a united front against the remarriage of divorced parties whose original churches would not approve. (If adopted it would have prevented a Presbyterian clergyman, for example, from performing nuptial rites between an ex-Catholic and a Presbyterian.) The league was also behind a 1906 National Congress on Divorce Laws, which drew up a standard code that it hoped would be adopted by all states, so as to erase the dividing line between hard and easy jurisdictions. There was no sign of any widespread intent by state legislatures to comply, and the divorce reformers then tried to build unity by turning the matter over to the federal government through a constitutional amendment. This effort never got anywhere. One version of such an amendment was fruitlessly proposed by Kansas senator Arthur Capper as late as 1947.
The gains of the league in some states, however, only enhanced the attractions of more lenient commonwealths, especially those where it was pleasant to linger. Divorce opponents could not wholly stamp out one of the oddest phenomena of American matrimonial history—the “quickie” divorce colony.
“The effort to base legal rules on moral and religious principles,” observed Viscount James Bryce, “leads naturally to casuistry.” In strict divorce jurisdictions that effort led to downright fabrication. Otherwise honorable men and women who could no longer suffer coexistence under the same roof went into court and “confessed,” with pathetic willingness, to adultery, desertion, and other offenses in order to be freed. For those seeking migratory divorce, the truth stretching included a willingness to pretend that one proposed to become a resident of a new state, while the actual intent was to take the decree and decamp. In this prevarication migratory divorce seekers were encouraged by many communities whose Protestant ethic radiated contradictory messages. They respected the sanctity of the marital union. But they also wished to be diligent in their business and to collar any profits to be made out of marriage’s decline and fall.
A modern generation, seeing the Midwest as the capital of corn, the seedbed of temperance and old time fundamentalist religion, may have some trouble in visualizing it as the former locale of the nation’s divorce capitals. Yet so it was. Indiana was the original divorce mecca, until its legislature, in the 1870’s, tightened the residency laws. The best-known divorce center then became Sioux Falls, South Dakota, which showed great enterprise in profiting from those drawn to the state (admitted in 1889) by its mild divorce statutes and short residence requirement.
A reporter described the Sioux Falls scene in 1894. Each day’s train was likely to bring a few wives who were ready to become the plaintiffs in divorce suits. (Wives usually were the complaining party in prearranged divorces—partly out of male gallantry and partly because they could be spared from business to wait out a three-month residence requirement, raised to six in 1893.) A new arrival would be taken to a good hotel, such as the Cataract House or the Commercial House; and before she had finished unpinning her hat, lawyers would be sending up their cards. Once she had engaged one, for a total fee of perhaps two hundred and fifty dollars, her task was to pass the time. If she was respectable, there was reading, shopping, and riding. If not, there were three or four gambling houses where lady patrons were not unknown. Though Sioux Falls had prohibition, there was solace in whiskey and brandy “tonics” sold by drugstores. And there were young men-about-Sioux Falls who gladly squired lonely and soon-to-be-single ladies of fortune. As soon as the waiting period was over, the new “resident” went to the courthouse of Dakota granite to file her petition and soon thereafter to testify privately to a judge that her husband was guilty of desertion, adultery, or cruelty, depending on what her lawyer suggested. (Somehow the details now and then found their way into the press, particularly if the divorcée was a celebrity like Mrs. James G. Blaine, Jr., the daughter-in-law of the one-time Secretary of State.)
South Dakota conservatives like Episcopal bishop William H. Hare were revolted by such proceedings. Bishop Hare led trainloads of protesters to the state capital to demand tightening of the laws. But Sioux Falls fought back, employing the classic argument that if it did not furnish a divorce locale other places would, and pointing out that in six months a rich and unhappy visiting lady could patronize merchants far more handsomely than local farm wives. A judge summed up town opinion when he declared that divorce seekers came for a lawful purpose, “as much so as if they sought the pure air and salubrious climate of the State for the benefit of their health, or its fertile soil for agricultural purposes.”
Nonetheless, the divorce reformers finally got the state to lengthen its residence requirement to a prohibitive one year, in 1907. In that same year an attorney named William H. Schnitzer moved from New York to Reno and energetically began to call attention to Nevada’s divorce advantages: the six months’ residency, the lenient grounds, the private hearings where there was no contest, the privilege of immediate remarriage. Collecting these facts in a pamphlet, Schnitzer then took ads in Boston, New York, and Philadelphia papers. “Have You Domestic Trouble?” they asked. “Are You Seeking DIVORCE? Do You Want Quick and Reliable Action? Send for My Booklet.”
Thousands did. Despite an eight-month suspension by the Nevada supreme court in 1911 because of such solicitations, Schnitzer prospered. So did Reno’s innkeepers, enriched by a rising number of divorce seekers, and in a newspaper jingle they reminded those who objected:
All Nevada, in fact, preferred to thrive. By the early 1920’s the Reno court was granting a thousand divorces a year. (Las Vegas was then only a wagon stop between Salt Lake City and Los Angeles and did not emerge as a pleasure dome and divorce factory until late in the thirties.) Intoxicated with such success, the legislature in 1927 passed a bill cutting the residence requirement to three months. It went through at an all-night session, and a complaisant governor signed it before breakfast, and before conservatives could react. The result was all that enterprise expected. Reno, whose legalized gambling parlors were especially diverting to bored wives, was soon doing two million dollars’ worth of business annually. Lush times were reflected in the sight of crowds strolling in “Alimony Park” across the street from the courthouse. (Alimony, however, was not an important factor in divorce history until relatively recent times. In 1916 it was awarded in only 15 per cent of all cases.∗)
∗Originally derived from the Latin word alimentum , or nourishment, alimony was a payment required of husbands in the days when they were masters of their wives’ property. If a husband received a bed-and-board divorce, he retained control of the spouse’s assets but had to provide for her support out of their income. Time and feminism have changed the law so that men are no longer masters of their wives’ wealth —but the obligation to support a divorced spouse (unless she is found to be the “guilty” party in a divorce) remains. While there are often good and sufficient reasons for alimony, many men are outraged at a pattern of past judicial practice which holds that in awarding alimony courts should exercise “a just liberality” with the ex-husband’s means. Wives may receive alimony sufficient to maintain their former standard of living even from a husband thrown on hard times; they may receive it even when remarried; incredibly, some have even gotten alimony awards when “living in sin” with another man. For in the words of one judge who made such an award, the divorced woman owes her former mate “no duty to lead a virtuous life” in return for support.
Then, in 1931, Reno met a challenge. Other states, sinking deeper into the Depression, determined to override scruples and bid for vacationing marital refugees. In February, Arkansas, already attracting tourists to its hot springs, reduced its residence requirement for filing divorce suits to three months, despite one Bible Belt legislator’s cry: “It looks as if we have reached the same point reached by Judas Iscariot when he sold the Christ.” The following month Idaho likewise cut its residence time to three months, and in 1935 Wyoming and Florida followed suit.
But Nevada’s response was immediate. By votes of 34–0 in the house and 13–1 in the senate, the state promptly cut its residence requirement to six weeks. Forty-two days constituted a pleasant vacation amid purple mountain majesties and chattering roulette wheels, with board and lodging as low as twenty-five dollars a week at some dude ranches. Reno flourished more than ever as a result of its willingness to offer escape from what one ex-governor of Nevada called “the medieval divorce laws of other states.” The 151 lawyers listed in its 1935 telephone book (in a city with only eighteen thousand permanent residents) had plenty of work, most of it undemanding, since 90 per cent of the cases were uncontested and a junior clerk could easily draw up the complaint. Fees averaged around two hundred and fifty dollars, and court costs under thirty dollars. Yet Renoites were slightly defensive. They liked to point out that their prosperity rested on easy marriage as well as divorce and that in 1934, for example, when 2,854 divorces were granted, 5,629 marriage licenses were issued. (Many, of course, went to brand-new divorcées beginning afresh.)
Other divorce centers rose and fell in popularity in the era between the two world wars. For the wealthy, Paris offered advantages in the twenties. The French grounds were broad (even to including “serious insults”), their judicial tradition was more interested in establishing facts than allotting blame, and until a 1928 tightening-up France’s courts did not always probe deeply into the genuineness of a petitioner’s declaration of permanent residence. Havana had a brief flurry in the thirties, as did the U.S. Virgin Islands—until the federal courts began to insist that a person who was claiming domicile in the territory would have to plan a longer stay than a Caribbean vacation. Mexico rose as a center for divorce after a 1914 law allowed its constituent states to set up liberal procedures. Chihuahua worked out a relaxed formula that required only one party to appear and establish “residence” by a simple statement of intent. If the other party consented, divorce could then be granted on several simple grounds, the least judicially agonizing of which was “incompatibility of character.” The procedure took less than a day (with a Mexican attorney standing in for the absent spouse), and the time could be pleasantly passed drinking beer and shopping in Juarez. In that one city alone in 1934, 2,223 divorces were granted to foreigners. Twenty years later the total had reached 5,625; 4,300 went to Americans. (It was still rising in 1970, when Chihuahua suddenly made its laws more stringent, in a conservative reaction.)
Migratory divorce was not without perils. Each state of the Union is obliged, under Article IV of the Constitution, to give “full faith and credit” to the judicial proceedings of sister states. But there is a catch. The other state must be acknowledged to have lawful jurisdiction. In many cases ex-spouses or heirs of persons divorced in out-of-state courts have sued to invalidate the decree by attacking the genuineness of the residence in the “foreign” legal domain. Sometimes they have won. The legal history of such cases is too tortuous for a layman to summarize without error. Suffice it to say that a husband or wife planning to get a divorce outside the home state would do well to consult a local attorney before buying tickets.
After 1945 statistics underscored what seemed to be a growing willingness to divorce, as an affluent and mobile population became impatient of pangs and frustrations once thought of as inevitable. A record-breaking number of divorces was recorded in 1946—682,760—as many returning veterans broke up unsatisfactory wartime alliances. In 1949 the ultimate bastion of conservatism, South Carolina, accepted the inevitable and adopted a divorce code. (New York, the other pillar, waited until 1966—but then adopted a liberal law that made voluntary, legalized separation for two years good enough reason for granting divorces.)
In the 1950’s Florida, which offered sun, sand, and dogtracks to the pleasure-bent divorce seeker, passed Nevada and granted an average of twenty thousand divorces annually, compared with ten thousand for the mountain state. A new and unusual divorce mill sprang up in Alabama, where sharp-eyed lawyers found that the residence requirement could be waived altogether if both parties acknowledged the jurisdiction of the state courts. A simple statement of intent to domicile from both parties allowed a judge to decide immediately that iniquities justifying a dissolution of the marriage had been committed. Before the Alabama supreme court, in 1964, cracked down on exploitation of this loophole, such celebrities as Hank Greenberg, John Daly, Grace Metalious, and Tina Onassis had utilized this brand of southern hospitality to be liberated from their spouses.
By 1970 the total number of divorces granted per thousand of population had reached 3.3, as against 0.5 per thousand in 1890. Yet those concerned for the future of marriage did not need to despair entirely. Divorce statistics are only an approximation of truth. Sometimes, it is true, they understate the actual rate of marital breakups. They do not, for example, show the hundreds of thousands of husbands over the years who, lacking funds or inclination to go to court, take the poor man’s divorce, and desert. But on the other hand they sometimes paint a needlessly gloomy picture of social reality. Migratory divorces hugely swell the rate in easy jurisdictions—but over-all account for fewer than 5 per cent of the nation’s separations. Or to take another instance, the most common ground for divorce in nineteenth-century America was adultery, with cruelty far behind—the reverse of today’s situation. Were our forebears kinder, but more given to extramarital dalliance? Of course not. Adultery was then the most commonly acceptable grounds in court, and therefore the most frequently cited, truthfully or otherwise. Cruelty has become a more common plea in our time because courts are willing to interpret the word so broadly that it often means only incompatibility.
Whatever the future of matrimony in America, it can only be seen in a glass, darkly, in divorce figures. The American divorce rate has, in fact, been exceeded from time to time in recent years by nations as diverse as Japan, Algeria, Israel, Russia, and Egypt. In all these countries, as in this one, marriage is perhaps not so much in trouble as in transition. What is changing is a set of basic concepts about whose rights, in marriage, are paramount—those of the man, the woman, the children, or society. Finally, in the United States marriage is actually more popular than ever. Nine out of ten divorced people remarry, and a huge percentage of the new marriages endure until death. And first marriages continue to boom. In 1900 little more than half of all Americans over the age of fourteen were united in wedlock. In 1970 the proportion was up to 67 per cent for men and 62 per cent for women.
Marriage and divorce will undoubtedly take novel shapes in the age of the Pill and the abortion, to say nothing of other sweeping social changes. These new configurations will owe much, as they have in the past, to two factors. One is the universal human and social need both for marriage and for escape from marriage. The other is the unique mixture of traditions and outlooks that characterizes the United States’ population in the third century of her national existence. In its own way, divorce in the land of the free will also continue to be as American as apple pie.