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Till Divorce Do Us Part
It has been with us since Plymouth Colony. But that’s not why it’s an American institution.
November 2000 | Volume 51, Issue 7
On September evening in 1918, while unpacking an overseas bag for her husband, who had returned from a fact-finding tour of war-torn Europe with double pneumonia, Eleanor Roosevelt came upon a cache of love letters from her social secretary, Lucy Mercer. Later Eleanor would write that the bottom fell out of her world. She did what any high-minded wife would have done at the time: She offered her husband his freedom. Guilty, grief-stricken, but besotted by the lovely Miss Mercer, Franklin accepted his wife’s offer. After six months in Reno, which had recently replaced Sioux Falls, South Dakota, as America’s foremost divorce mill, Eleanor, mindful of the shame and potential scandal that stalked a divorcée, withdrew to a small safe circle of wellborn friends and relatives. Franklin, dismissed from his position by Secretary of the Navy Josephus Daniels, who had hounded his own brother-in-law from the family newspaper and the state of North Carolina for a similar offense, took the second Mrs. Roosevelt back to Hyde Park. He could not, however, return to his beloved Springwood, overlooking the Hudson; his mother, who held the purse strings, had disinherited him, as she’d threatened to do if he disgraced the family with a divorce. He lived out his days in the general vicinity, pursuing a series of agricultural and forestry experiments. Fourteen years later a Depression-wracked nation elected Newton D. Baker its thirty-second President. In the annals of twentieth-century history, Franklin D. Roosevelt merits a brief listing as Assistant Secretary of the Navy under Woodrow Wilson. Eleanor Roosevelt is not mentioned at all.
The story is true, up to a point. Eleanor Roosevelt did offer her husband a divorce, but Franklin declined. He loved Lucy, but he ached to be President. “It is better to marry than to burn,” St. Paul said, and opened an alternative path to salvation for those who could not embrace celibacy. In Franklin Roosevelt’s case, it was better to stay married than to burn. Everyone knew the American people would not elect a divorced man to their highest office.
It is hard to believe that a small adjustment between two people or, as is frequently the case, among three, can arouse such passions and alter the course of history. But the powerful emotions divorce stirs grow out of the primitive lusts it seeks to contain. Divorce is society’s attempt to regulate the urge for sex and the desire for property. Small wonder that it inflames; less that it is always with us.
The Romans codified it. The Catholic Church both forbade it and circumvented it with annulment. The Protestant sects fought about it endlessly. “Good God, what a bother these matrimonial cases are to us!” Martin Luther lamented. Milton, who wrote four tracts on divorce around the time his young wife left him, saw it as a kind of paradise regained. When a couple ceased to love each other, he argued, they were no longer married in God’s eyes, and there was “no power above their own consent to hinder them from unjoining.” But if divorce germinated in the Old World, it blossomed in the New.
In 1639, while England still ruled marriage indissoluble, the Plymouth Colony granted the first divorce on the new continent, and in the next 60 years the Massachusetts Bay Colony recorded 44 more. By the mid-nineteenth century, other nations saw the American divorce rate, the highest in the world, as a sign of low morals. Canadians despaired of Americans’ absence of restraint, which was “manifested in lynchings and murders” as well as divorce, and one study found that U.S. Mennonites were four times as likely to divorce as their Canadian co-religionists. Could it be something in the water?
Though a spirit of independence had sent the early settlers across an ocean, survival in a vast and unwelcoming continent had required cooperation. The repeated hammering of a husband’s fists, however, or the constant lashing of a wife’s tongue tended to alienate the neighbors. Adultery was even more disruptive to the village peace, and bigamy led to chaos. Thus, in 1639, when James Luxford’s wife discovered her husband’s other spouse, the Plymouth Colony not only granted her that first divorce but fined him a hundred pounds, sentenced him to an hour in the stocks on market day, and banished him to England. Throughout the colonial period, alimony would be rare, but fines, whipping, and the stocks were common.
One of the ironies of the period was that divorce was obtainable, if not easy, in Puritan New England but difficult, if not impossible, in the supposedly easygoing South. The difference goes to the heart of the battles swirling around divorce. Was it a legal, moral, or social issue—the domain of lawmakers, soul savers, or do-gooders?
The New England colonies viewed marriage, and therefore divorce, as a secular rather than religious rite. The first marriage in the Plymouth Colony, which predated the first divorce by a mere 18 years, was “performed by the magistrate, as being a civil thing.” The Southern colonies also put marriage in the secular sphere, but when it came to divorce, they clung to the Anglican Church. What God had joined together, albeit through the auspices of the state, no man might put asunder.
What the South saw as a solution to the problem of marital discord, the North viewed as a recipe for social disaster. The only evil more disruptive to society than an unhappy marriage was the solitary potential sinner it left in its wake. In many New England communities there were laws against “the solitary vice” of living alone. Massachusetts convicted John Eittleale of “lay[ing] in a house by himself contrary to the law of the country” and fined Mary Drury for “leaving the fellowship of her husband.” Therefore, certain seventeenth-century settlers, Cotton Mather among them, foreshadowing nineteenth- and twentieth-century sociologists, viewed divorce as a safety valve. In the latter centuries, the emphasis would be on personal fulfillment, in the seventeenth and eighteenth on social cohesiveness, but the idea that an individual’s happiness contributes to the common good was clearly new. Divorce would punish and perhaps banish the guilty spouse and set the innocent free to find another provider or helpmeet, and to procreate. The last ranked high among colonial concerns. In 1769 the governor of New York looked longingly at the superior population growth of New England, which had a less restrictive divorce law.
The New England colonies were not, however, a hotbed of low morals and lascivious behavior, any more than the South was a haven for happy marriages. When government outlawed divorce, and sometimes even when it didn’t, a resourceful people in an infant country found alternatives. Vast spaces, primitive means of communication, and no Social Security numbers made desertion as easy then as no-fault divorce is today. Newspapers ran notices: REWARD—RUNAWAY WIFE . Bigamy, the occasional wife sale, and murder were other early do-it-yourself methods of breaking marital bonds.
Colonial America was, of course, a crazy quilt of laws, and the grounds for, as well as the possibility of, divorce varied from place to place. In Massachusetts Bay after 1629, if either spouse deserted, the other could sue, but when it came to adultery, only a wife’s transgression provided cause. Mobility made bigamy, like desertion, common, and in 1680 Elizabeth Stevens divorced her husband in the Plymouth Colony for having wives in Boston, Barbados, and an unspecified English village. Most colonies that permitted divorce recognized impotence as just cause, and here the New World took a step toward what might be called the professionalization of divorce. In seeking physiological evidence of non-consummation, an old English statute appointed “seven honest women” to labor diligently over the accused, but New York required examination by surgeons.
The notes Jefferson prepared for a bill of divorce foreshadow the document he drafted a few years later to dissolve the American colonies’ bonds with England.
As the colonies inched closer to revolution, divorce, once an instrument of cohesion, became an overture to independence. In 1772 Dr. James Blair, whose marriage had never been consummated, retained Thomas Jefferson to represent him in the event that Mrs. Blair sued. Dr. Blair died before any action was brought, but the notes Jefferson prepared for a bill of divorce foreshadow the document he drafted a few years later to dissolve the colonies’ bonds with Great Britain. “Cruel to continue by violence an union made at first by mutual love, but now dissolved by hatred,” Jefferson wrote. “End of marriage is Propagation & Happiness. Where can be neither, should be dissolved.” Could the Declaration’s “consent of the governed” and “the Right of the People to alter or abolish” be far behind?
Divorce was not only a prelude to America’s independence but a contributing cause of it. In 1773 the British crown forbade all royal governors to assent to any bills of divorce of “persons joined together in Holy Marriage.” The order wasn’t as galling as a new tax, but it raised colonial hackles a little higher. In no time, revolution and divorce were on intimate terms. Men and women bringing marital petitions began using terms like tyranny, misrule, injustice , and happiness of the individual . America had discovered independence with a vengeance.
The trend continued as the country expanded. Men, and women, were striking out for new territory. Sometimes a spouse didn’t want to go. Individuals were re-inventing themselves. Sometimes a husband or wife didn’t want to take a spouse along. Cohesion had been necessary in the fledgling colonies, but the Republic was a free and freewheeling nation, dedicated to happiness as well as liberty.
Indeed, many who inveighed against the burgeoning divorce rate believed the culprit was the particularly American infatuation with individualism. In 1852, the New York Tribune editor, Horace Greeley, deplored “the right of every man to do pretty nearly as he pleases” as the chief cause of divorce and warned of “a general profligacy and corruption such as this country has never known.” Moreover, Greeley argued, most married people were happy precisely because they assumed they were bound for life. In other words, it was the scent of freedom that aroused dissatisfaction.
Soon, divorce, like every other American institution, came up against slavery, not as an issue (since slaves were not officially permitted to marry, there was no need for them to divorce) but as a metaphor. When word of an unhappy wife’s suicide traveled through Philadelphia in 1788, an anonymous writer published An Essay on Marriage , in which he cited the new sentiment for freeing slaves and wondered, “where is there any relief to the miserable, hen-pecked husband, or the abused and insulted, despised wife?” In 1881 The Century Magazine heralded serialization of William Dean Howells’s A Modern Instance , generally regarded as the first serious divorce novel, with comparisons to Uncle Tom’s Cabin , which it had run three decades earlier. When Elizabeth Cady Stanton wasn’t likening marriage to “legalized prostitution,” she was sprinkling her speeches on divorce with words like slavery, chains , and degradation . In 1884, she wrote, “Liberal divorce laws for oppressed wives are what Canada was for Southern slaves.”
Soon, divorce, like every other American institution, came up against slavery, not as an issue—slaves, after all, were not permitted to marry—but as a metaphor.
If slavery provided an apt analogy for marriage, race inflamed the issue of divorce. In 1803 a wife’s infidelity with a slave prompted Virginia legislators to enact the state’s first “bill of divorcement.” Thirteen years earlier, John Sewall sued his wife, Eve, after she gave birth to a mulatto child. If that had been the end of the action, it might be a simple case of adultery, but Eve and the child were sold into slavery in accordance with Maryland law.
If abolition entered the divorce arguments, so did feminism. By the mid-nineteenth century, when women could both earn wages and legally control them, many feminists saw liberalized divorce as one more step on the road to woman’s full equality. Divorce and feminism were not, however, a match made in heaven. Elizabeth Cady Stanton, who had several lectures in her repertoire, admitted that “women respond to this divorce speech as they never did to suffrage.” The vote might be nice, but it couldn’t hold a candle to freedom from a husband’s beatings, food for the children, and the certainty that the week’s wages were not going to the corner barkeep.
Other feminists, however, feared destroying the family, which they regarded not only as woman’s special realm and responsibility but as the very foundation of civilization. The division went back to the Seneca Falls Convention of 1848. One supporter of the vote for women complained, “It has been a source of regret to me ever since I joined the Women Suffrage party, that so many advocates of that measure are advocates also of a greater liberty of divorce.”
Some suffragists saw an even greater threat. They feared sullying their political purity with the salacious scent of free love. In a thinly disguised 1855 autobiographical novel, titled Mary Lyndon; or, Revelations of a Life , the spiritualist, reformer, and medical practitioner Mary Gove Nichols portrayed her first husband as a leech who appropriated her income as fast as she earned it. But to The New York Times , the book, which also celebrated Nichols’s fashionable salon and a subsequent love affair with an English spiritualist, was nothing more than an argument for “the reforming influence of fine art and fornication.” Meanwhile the factions splintered further. Among those who supported liberalized divorce, old-line feminists wanted to free women from the abuses of sex, new moralists for the pleasures of it.
The idea of women carrying on like men tapped into the rich vein of misogyny that so often runs beneath the surface of chivalry. Colonial pamphlets on marital advice warned against man’s enslavement to woman’s sexuality. More than two and a half centuries later, one of the spate of marriage manuals that appeared in the early nineteen hundreds warned against selfish wives who carry the “germ of divorce.” Clearly the rate at which the nation’s marriages were foundering reflected the American woman’s sexual and economic voraciousness.
Statistics seemed to substantiate the argument. Historically, women have brought more divorce suits than men, but the main cause of the imbalance was a peculiar gentleman’s agreement. Men would permit women to charge adultery as long as they could go on committing it; real men weren’t subject to mental cruelty; and women who were not employed had the luxury of establishing residency elsewhere, while men who were did not.
Whichever sex was responsible, by the second half of the nineteenth century, both men and women were clamoring for reform. They banded together in leagues and collected statistics, lobbied for a uniform code, and even talked of a constitutional amendment. The word reform , however, can be misleading. A uniform law did not mean a liberal law. While suffragists were divided on the question of divorce, the General Federation of Women’s Clubs was clearly against it. Its members wanted to protect women rather than emancipate them. The Woman’s Christian Temperance Union, the largest women’s organization in the country, found itself in a particular bind. Opposed to liberalized divorce, it nonetheless fought to extend the grounds to drunkenness. The various Protestant denominations stiffened their positions against the institution, and Theodore Roosevelt raised his shrill voice against it in public and nipped it in the bud at home when he forbade his daughter Alice to bring suit against her prodigiously unfaithful husband, Nicholas Longworth.
But where some found moral laxity, others saw economic opportunity. The reformers were up against nothing less than the American entrepreneurial spirit as embodied in the divorce mill. The mill was highly mobile. It moved from Indianapolis in the 1850s, through Utah and the Dakotas, on to the Oklahoma Territory, settled briefly in Wyoming, and in 1910 finally put down roots in Reno. The scenery varied, but the conditions remained the same. The first was a short residency requirement; the second, “omnibus grounds,” which gave broad definitions to cruelty and incompatibility. Other accommodations and amenities followed. In the 1890s, Sioux Falls, South Dakota, boasted 10 gambling halls, 37 holes-in-the-wall, and 100 prostitutes. Meanwhile, The Nation lamented that at the city’s hotels “a divorced husband may be seen introducing his new wife to his old one, who, in her turn, presents her new husband, while the bewildered children involved in this scandalous mixture wander about in disconsolate uncertainty.” But the moralists were no match for the entrepreneurs. In 1913, reformers persuaded the Nevada legislature to extend the residency requirement to 12 months, but two years later the Reno Businessmen’s Association succeeded in rolling it back, and by 1931, with Idaho and Arkansas hot on the trail of the divorce dollar, the requirement was down to 6 weeks.
The perception of an entire population crisscrossing the country in pursuit of quick and easy divorce was widespread. “I’ll reside in Athens six weeks, while I get me a divorce,” wrote Lorenz Hart in the 1938 musical The Boys From Syracuse . But unlike the men-hating wives and social-climbing home wreckers in The Women , Clare Boothe Luce’s hit play of the same period, few people had the time or money for Pullman fare and several weeks on a dude ranch. The ones who did, however, tended to make headlines. In 1869, on his way from St. Petersburg to his destiny in Troy, Heinrich Schliemann made a stop in Indianapolis, where he bought a house and a share in a starch factory to convince the legislature he was a serious resident and therefore entitled to a speedy divorce. (From colonial times until well into the nineteenth century, both legislatures and courts granted divorces.)
The mills may not have been undermining personal morals, as the reformers argued, but they were subverting the rule of law. “How intolerable … that citizens of New York, for example, should be able to set the laws to which they are subject at defiance by temporarily removing to another State,” The Nation scolded in the article cited earlier. The problem was not new. Law and practice had been on uneasy terms ever since the colonies, taking a cue from the mother country, had made divorce an adversarial action. If one unhappy spouse sued, it was legal. If both opted to end the marriage, it was collusion. The result was a nation of pillars of the community, leaders of society, and otherwise honest folk busily breaking the law. In New York, which retained Alexander Hamilton’s 1787 statute designating adultery as the sole ground until 1966, a cottage industry of accessories to the crime grew up. A 1934 series in the New York Mirror ran under the headline I WAS THE “UNKNOWN BLOND” IN 100 NEW YORK DIVORCES ! A decade and a half later, another newspaper published a feature about a wife and mother of three who moonlighted as an “unknown woman” in staged adulteries all over town. As a result, the district attorney’s office opened 600 recent divorces to review. The number of matrimonial actions in New York County fell by 43 percent the following year.
The tabloids’ focus on corespondents reveals a home truth about divorce. The blush of shame it has always worn goes back to the early company it kept with adultery. By the late seventeenth century, fornication had ceased to be a capital offense in most colonies, but it was still seen as the devil’s work, and some warned that a society that failed to punish adultery by death would itself be punished by God. Thus were laid the philosophic grounds for an intrusive priggishness that would lead to a presidential impeachment destined to astound and amuse the rest of the world.
The politics of prudery, and the prudishness of politics, have a long history. In 1828, when Andrew Jackson ran for the Presidency, a group of moral guardians, who also happened to be his political opponents, dredged up the decades-old circumstances of his marriage and his wife’s previous divorce, which were confusing at best, compromising at worst. Jackson’s enemies charged adultery, living together without benefit of clergy, and bigamy (though the last two could scarcely have existed simultaneously). He “tore from a husband the wife of his bosom,” testified one congressional candidate. BASE, WANTON, AND MALIGNANT FALSEHOOD , shrieked the equally excitable Jacksonian press. True, the scandal grew out of the circumstances of the divorce, rather than the issue of divorce itself, but until no-fault sundering arrived on the scene, and even since it has, the devil has always been in the lurid details.
As the country grew, Americans on the move divorced more but disapproved of it no less. Before 1900, no magazine except the radical Arena defended the right to divorce, and fiction was equally recalcitrant. When a divorced man proposes to a respectable woman in an 1865 novel titled Out in the World , by T. S. Arthur, she tells him, “I regard an offer of marriage from you as little better than an insult.” The 1880s and 1890s were a good period for the divorce novel, though few of these were any good by literary standards. Lawyers were typically given names like Mr. Sly, and the repercussions ran to alcoholism, business failure, ill health, and even death. When the literature was actually good, divorce fared better, though the portrayal of public attitude toward it was more scathing. In Edith Wharton’s The Custom of the Country , the heroine who is cavalier about divorce is ironically outwitted by it. But The Age of Innocence paints a chilling picture of a woman imprisoned by society’s prejudice against divorce.
Although moving pictures, more democratic mirrors and makers of opinion, did not give divorce a good name, they did occasionally give it a fair shake. One study found that of 24 films dealing with divorce in 1931 and 1932, fully 22 treated it sympathetically. A few years later, in Dodsworth , an underrated gem of American filmmaking, a luminous Mary Astor tells a long-married Walter Huston, “I used to be a British subject by marriage. I don’t know that one can be a British subject by divorce.” Astor’s tone is wistful, but the message is subversive. A divorced woman can make a better helpmate than a long-time wife.
Much of the literature on divorce took the form of advice manuals. Even here, the blush of shame would not fade. As late as 1947, a primer called ABC of Divorce asked such pertinent questions as “Have You Considered the Attitudes of Others?” and “Where Does the Boss Stand on Divorce?” and answered, “Prepare to get a mild brush-off from all but your most intimate women friends,” and, “[Many employers] maintain, with some justification, that a divorced person is not as steady or satisfactory an employee as a married one.” A decade earlier, Harper’s Monthly ran an article called “Thrice Married,” by Anonymous. Though the writer compared herself to a woman in a similar situation “now so well-known that I need not mention her name,” the fact that Anonymous would identify neither herself nor Wallis Warfield Simpson indicates the aura of disrepute that still clung to divorce, or at least to divorcées. (While a man is merely divorced, a woman is that racy breed, a divorcée.) Nonetheless, Anonymous shows a certain swaggering pride at her success in the marriage sweepstakes. “I would rather be envied than pitied. I would rather be judged a hussy than a wife who couldn’t hold her husband. But the truth is that I have been married three times just because I am not lightminded about marriage.” The last sentence is the giveaway. Like pornographers who camouflaged their dirty books in innocuous brown wrappers, marriage experts hid their happily-ever-after hints between the covers of divorce handbooks.
As late as 1947, a primer called ABC of Divorce asked, “Have You Considered the Attitudes of Others?” and “Where Does the Boss Stand on Divorce?”
Divorce, nonetheless, persisted, even flourished. The social revolution of the sixties liberalized policy, transformed attitudes, and ushered in no-fault laws. Now when a marriage foundered, there were casualties but no culprit. Greeting-card companies cashed in on the phenomenon: “I’ve just heard … You’re free as a bird.” In the political arena, divorce became an occasion for humor rather than an issue—remember the anti-Ronald Reagan buttons suggesting that Jane Wyman was right? —yet the moralists and the policymakers continued to fret. The governor of California cited the “festering problem” of divorce and appointed a committee to find ways to slow the rising rate, resulting in a 1969 law combining no-fault principles with judicial control. The relationship-enhancement movement that began training spouses in marriage “skills” in the fifties has burgeoned into big business. Recently, Arizona and Louisiana instituted the option of “covenant marriage,” which requires the bride and groom to sign a contract permitting divorce only on grounds of adultery, abuse, abandonment, imprisonment of a spouse, or long marital separation. We have come full circle to colonial practice, but now spouses, rather than the state or church, are trying to legislate the marital happiness that continues to elude them.
America embraced divorce because it believed in marriage. Not marriage as the rest of the world practiced it—grounded in property rights, arranged by others, maintained in form, degraded in practice—but marriage as a lifelong love affair, an endless ride on the roller coaster of romance, an enduring affirmation of the specialness of self as reflected in another’s eyes. In America a happy marriage is every individual’s birthright. We hunger after it ourselves, hope for it for our children, even expect it from our politicians. In 1952 political wisdom predicted Adlai Stevenson could not win the Presidency because he was a divorced man. Stevenson’s marital status never became a campaign issue, possibly because the Republicans believed the Democrats had a copy of a letter citing Dwight Eisenhower’s own intent to seek a divorce after the war. Still, the Democratic party was sufficiently broadminded to nominate a divorced man twice. In more recent times, as many pundits have noted, it takes a divorced man like Newt Gingrich or Bob Dole to appreciate family values.
Perhaps the exercise in what-if history at the beginning of this article got it wrong. Perhaps an America in thrall to the idea of love would have forgiven Franklin Roosevelt and elected him to its highest office. Depression-era audiences flocked to escapist romantic comedies with happy endings. Perhaps Eleanor would have overcome the stigma of divorce, as she conquered so many other prejudices of her time and class, and gone on to fight its injustices.
Divorce is an American institution. It was born of a continent’s imperatives and a people’s love of independence and infatuation with individualism. It came of age colored by the problem of slavery and the issue of race. It flourished in our entrepreneurial climate and in spite of our prudishness, or perhaps because of our prurience. But most of all, America turned divorce into a national passion because of our fervent belief in love and marriage, and love in marriage.