Divorce and Marital Separation
DIVORCE AND MARITAL SEPARATION
DIVORCE AND MARITAL SEPARATION. It was once difficult, perhaps impossible, to obtain a divorce, even when couples found themselves to be incompatible, even when one found the other detestable. Many individuals, apparently locked in unhappy marriages, found ways to leave or separate from spouses and to make new marriages, but only very few could obtain divorces. Since the late nineteenth century, however, there has been a huge increase in the number of marriages ended by formal divorce. Eventually, Americans of all religious faiths and cultural traditions came to understand that there existed an inherent legal right to end marriages whenever it suited them, for reasons good or ill. Since the 1980s, roughly 50 percent of all American marriages end in divorce.
As a legislative matter, the story of American divorce can be told in three chapters or stages. During the first stage, in colonial New England, the law of marriage differed sharply from legal practices in England, where marriage was understood as an indissoluble religious sacrament. English church courts could, however, order separations without right of remarriage and, by the eighteenth century, it was possible for a few very rich men to obtain private legislative acts authorizing their divorces, once they had proved their wives' adultery in civil judicial actions. In New England, by contrast, marriage was a civil contract, and divorces were granted after a judicial proceeding when a wife's or husband's misconduct was proved. Divorces were occasionally granted elsewhere in colonial North America, but other colonial legislatures did not pass laws allowing divorce.
After the American Revolution, a great change occurred, which introduced the second chapter in the history of American divorce. By the early years of the nineteenth century, every new American state except South Carolina had enacted laws authorizing divorce under limited circumstances. In every state, again excepting South Carolina, a full divorce with right of remarriage for the "innocent" party could be granted if the adultery of the "guilty" spouse were proved. In some states (for example, in New Hampshire), a variety of other grounds, including incest, bigamy, abandonment for three years, and extreme cruelty, would also justify a divorce decree. In many states, only the innocent party was set free from the "bonds of matrimony." That meant the guilty party was, at least in theory, forbidden to remarry during the lifetime of the innocent party and also that the innocent spouse might retain a right to inherit land or other property from the guilty one. In most of the new states, particular courts were designated to hear such cases, but in a few states, Maryland for one, a divorce was understood as an exceptional act requiring a private bill of divorce by the state legislature.
By the second third of the nineteenth century, the many varieties of divorce available in America had become a matter of amazed comment by European travelers and others, although the actual number of divorces granted remained minuscule by early twenty-first-century standards. As everyone noted, some legislatures (Connecticut first, then a series of midwestern jurisdictions, most notoriously Indiana) had begun to experiment with divorce rules that were radically "liberal," both in terms of the multiplicity of fault grounds (and the ease with which "fault" could be proved) and in ease of proving state residence. These transformative jurisdictional changes enabled wives to establish independent residences in a state and to file for divorce in that state, a radical break with the inherited English and early American law that held that a wife, even an abandoned wife, had no right to a settlement or to a legal residence independent of her husband. Why legislatures instituted these liberal "reforms" remains mysterious. In some cases, the change can be identified with liberal or anti-Calvinist Protestant beliefs or with anti-Catholicism. Part of the explanation lies in the enormous faith in contractual freedom characteristic of nineteenth-century America. But another part of the story was the competitive position of these new states within the American federal polity. All states competed with each other for new residents, and legislators in many of the newer western and midwestern states perceived a particular "need" for white women willing to settle and marry or remarry.
Through the first half of the nineteenth century, the dominant American understanding of divorce was as a form of punishment for misconduct by the occasional miscreant who had behaved so criminally that his or her spouse was morally obliged to separate and seek a judicial remedy. All the varied divorce regimes in all the states were premised on the notion that a divorce was awarded to one party because of the fault of another party and because of the wrong done to the innocent party. A divorce case bore similarities to a criminal case, and many of the practices of the case law are understandable only if one recognizes that judges worried about tarring a wife or husband with a quasi-criminal label—as an adulterer or a deserter or someone guilty of "extreme cruelty" (which at first denoted physical abuse). A few divorces did not implicate the meaning of marriage, and the resulting judicial processes were designed not to uncover the foundations of marital breakdown but to ensure that the guilty were properly identified and that the rights of the innocent party were protected, since it was assumed that the consequence of divorce was dishonor.
Eventually, divorce became a wronged wife's remedy. Judges worried about the coercions of husbands and about husbands' desires to toss away wives when they came upon younger or wealthier possibilities. Increasingly, men became the wrongdoers in the legal imagination, and wives became victims. Legislators added "causes" for divorce, particularly the omnibus category of "cruelty" (widened to include many forms of emotional harm) that almost always implied what a man had done to his wife. Meanwhile, divorce practice evolved to focus less on dishonor and crime and more on the forms of compensation former wives could receive from their former husbands and on the new question of under what circumstances a separated or divorced wife could be awarded the custody of her children. In Michael Grossberg's image, judges became "judicial patriarchs," replacing the husband-patriarch in his home.
Nineteenth-century changes in divorce law have played a surprisingly important role in the constitutional history of American federalism. For every Indiana, where in 1851 divorces could be granted for reasons large and small and where a short six-month stay was sufficient to establish residence entitling one to the jurisdiction of the divorce court, there was a New York, which only allowed a divorce for proven "criminal" adultery (a limitation on divorce that would not be changed until the 1960s). Both New York and Indiana, it should be noted, justified their rules as protective of vulnerable women. On the one hand, Indiana legislators imagined a wife enchained to a drunken and abusive man and thus fashioned legislative tools to free her. Horace Greeley, on the other hand, who defended New York's law in a series of debates that he printed in his New York Tribune, regarded a rigid divorce law as the only protection for dependent wives, who would otherwise be left helpless by men using a liberal divorce law to escape from financial and moral obligations. (Woman's rights advocates lined up on both sides of the question.) Both New York and Indiana were clearly constitutionally entitled to enact their own distinctive divorce regimes. On the other hand, nothing kept married people in one state (perhaps a state like New York, where divorce was difficult) from divorcing in another (where divorce was easier), remarrying in a third, and settling (and perhaps divorcing again) in a fourth or, even more problematically, returning to the first state. Given the variety of rules in the various states, it became possible to imagine men and women who were legally married in one state and fornicators or criminal bigamists in another. This imagined result produced a great deal of constitutional conflict, as state and federal courts tried to find a way to balance the "Full Faith and Credit" clause of the U.S. Constitution (Article IV, section 1), which requires courts in each state to recognize the valid acts (including divorces) enacted in other states, including the particular political and moral interests of individual states regarding divorce. Only in the midst of World War II did the U.S. Supreme Court chart a way out of the dilemma (in Williams v. North Carolina). In so doing, it destroyed the capacity of conservative jurisdictions to keep residents from using the liberal divorce laws of other states. (By then, Nevada had become the twentieth-century paradigm of a liberal divorce jurisdiction.)
Beginning early in the nineteenth century, judges and legal commentators warned about the evil of a "collusive divorce." Standard legal lore stated that if both parties wanted a divorce, neither would be entitled to one, and yet couples, even in conservative divorce jurisdictions, manipulated the rules to end their marriages. They used lawyers and others to reproduce the circumstances that entitled them to divorce. For example, in New York a man would travel to New Jersey, where he would be photo-graphed by a detective while sitting on a bed in the company of a prostitute. Or, alternatively, men would fund their wives' travel to liberal jurisdictions (Indiana or South Dakota in the nineteenth century, Nevada or the Virgin Islands in the twentieth), where they could be divorced. By the early twentieth century, collusive divorce had become ordinary legal practice across America, a cultural symbol depicted in novels and movies and New Yorker cartoons.
In post–World War II America, first in California (1969) and soon everywhere else, a new generation of reformers, influenced by feminism, used anxiety over the collusive divorce as a reason to remake divorce law (and to produce the third stage in the legislative history of American divorces). Whatever one thought of the moral foundation for the fault grounds that littered the divorce statutes across America, those grounds had by then been so subverted by divorce practices that divorce law was a laughingstock. Respect for the legal system required eliminating fault grounds from divorce law. "No fault divorce" thus became the new rule, and by 1980, it was available in almost every U.S. jurisdiction. "No fault" meant a divorce at will, a right that belonged to both wife and husband during their marriage, a divorce that the state facilitated rather than a divorce that was granted after a long and exhaustive trial. Fault grounds have remained on the statute books, and there are particular strategic reasons why lawyers still sometimes advise their clients to use those archaic procedures. No fault divorce, however, has become the norm and has been transported around the world as a distinctively American export.
What of the quantitative growth in the rate of divorce, a growth that in the early 1930s was already labeled as the "galloping increase" in the American rate of divorce? There was probably a steady secular increase in the divorce rate from 1860 to 1980, punctuated by a decline during the Great Depression, a jump after World War II, and perhaps a decline during the 1950s. Although divorce would seem to be the one familial act for which we should have reliable statistics, in fact pre–World War II statistics are extremely unreliable. The divorce rate reported in the decennial federal censuses after 1860 depended on the uncertain capacity of states to enumerate the divorces granted by their local courts and on a generally unknown rate of marriage. Meanwhile, underlying the progression from rare to frequent divorce lies deep uncertainty about the significance of divorce as a legal mechanism to end existing marriages before death. The apparent increase in the rate of divorce over the past two centuries of American history tells us little about the rate of change in marital dissolution, since it tells us nothing about the less formal means that Americans have used to escape un-happy marriages. For example, serial bigamy was a form of marital refashioning that served Americans during much of the era between the beginnings of colonial settlement and the early twentieth century. Many second or third or fourth marriages were not preceded by divorce. A divorce became necessary only when there was a significant amount of property to be divided. Because of its criminal connotations, a divorce sometimes offered a useful mechanism for allowing the "innocent" victim of the guilty spouse to reclaim honor and an identity within an established community. For middle-class women, divorce (and judicially imposed separations) offered the possibility of a maintenance or alimony award (although throughout American history, men have been remarkably successful in escaping even legally imposed awards). The availability of a divorce action was often an important negotiating tool in the zero-sum games of ending a marriage. The characteristic forms of marital escape, however, were abandonment and desertion—unsullied by any public state action. A husband or, less often, a wife would leave and go elsewhere, probably to remarry in a place where no one knew of a previous marriage. This strategy left later generations of demographers, sociologists, historians, and census gatherers without a way to measure what they most wanted to know: How many marriages would end before the death of either wife or husband? Only in post–World War II America, where for the first time most employed men and women paid federal income taxes and could be tracked by means of a social security card, were women and men unable simply to disappear from un-happy marriages, leaving no trail.
As a result, it is easy to diminish the significance of divorce as an aspect of American social history, and yet, for an enormous number of polemicists on all sides in many cultural conflicts throughout American history, divorce has served as a lens through which to understand the marital and moral health of the republic.
In the seventeenth century, there were radical Protestant voices—John Milton's being the most famous of these—that advocated divorce as a remedy for marital misery. There were also powerfully articulated utilitarian justifications for not permitting divorce. In the eighteenth century, David Hume argued that unhappy couples became friends when they knew they could not escape from the relationship. In addition, there was a longstanding Christian understanding of marriage as an inescapable sacrament.
By the late 1860s and 1870s, conservative religious polemicists had begun to describe easy divorce as a symptom of moral breakdown and as destructive of marital and social stability. Forms of that critique continue to the present. Inherent in the arguments of the conservatives, as well as those of feminists like Elizabeth Cady Stanton, was an understanding that modern divorce was becoming a means of voluntary exit from unhappy unions, not a punishment for crime. For polemicists on both sides, the conditions of exit from marriage determined the conditions of life within that institution. To Stanton, that meant that men who depended on their wives would treat their wives with greater care and with greater equality if they knew that wives could leave. She also believed that divorce as a continuing potentiality was a necessary precondition for continuing love between spouses. To the conservatives, on the other hand, easy divorce transformed marriage into a scene of ongoing bargaining and threats, a merely strategic arrangement that had lost its sacred character and undermined the authority of the husband.
For Stanton, divorce offered women a form of self-emancipation and also created the possibility of a recon-figured marriage. For religious conservatives, likewise, divorce recreated those joined together in matrimony into selfish, merely "emancipated" individuals. On the other hand, if one asks why wives and husbands actually divorced throughout the nineteenth and most of the twentieth centuries, the answer is clear: in order to remarry. Divorce was almost always the precondition to remarriage after the first marriage had already fallen apart. Until recently, being married was central to the identity of an adult man or woman. In addition, marriage provided the necessary labor and care of another adult. Women in particular depended on the income provided by a husband. In the early years of the twenty-first century, in a world where women and men can survive, perhaps even flourish, without a spouse, divorce no longer implied re-marriage. Some critics saw divorce as a cause of female impoverishment and victimization. Others blamed the self-emancipation of divorce, leading predictably to child rearing in single-parent (typically mother-headed) households, for a variety of general social ills and particular harms to vulnerable children. Debates over divorce and its significance in American society and human relationships continued, even as divorce had become a right available to all.
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