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Dissolving the Family: Divorce and Custody

 

Divorce

Divorce in colonial America was extremely rare. It could be obtained only through legislative action, a time-consuming and costly enterprise that required the legislative body to pass a private act. Many couples divorced from "bed and board"; they simply separated without legally dissolving their relationship.

The extent of divorce changed more slowly than did its form. Legal divorce remained uncommon into the early twentieth century, especially in the South, although recent studies have shown that even there, wives were quite willing to divorce their husbands, despite a social stigma greater there than elsewhere. As late as 1851, legislative divorce was the only way out of a marriage in Virginia and Maryland. Northern legislatures much more quickly relieved themselves of the task of granting private divorce acts. Massachusetts in 1780 was the first state to allow judicial divorce, and by the end of the nineteenth century every state except South Carolina provided for it.

Marriage and the family were widely perceived as anchors of social stability, yet the companionate form of marriage invited dissolution when expectations of love and affection proved unreachable. Just as the act of marriage established property interests and legitimated procreation, so divorce severed those ties. Divorce was essentially an economic matter, like so much else of the emerging domestic relations law. The devolution and disposition of property rights along rational lines among millions of small property holders depended on a simple legal mechanism, and judicial divorce provided it.

Even as divorce law became rationalized, it remained deeply conflicted. Organized religion, for example, was a formidable opponent of divorce. The Catholic Church damned it as sin; Protestant denominations portrayed it as an act of personal and national moral degeneration. The same social reformers who argued for tighter standards of marital fitness and limits on birth control also pointed to the increasing incidence of divorce as evidence of social decay. Judges and legislators imbibed these social assumptions and, despite the pressures for greater change, they were unwilling to make divorce too easy and too efficient.

The adversarial process was itself an impediment. The concept of consensual divorce was not known in the law of the nineteenth-century United States; one party had to prove that the other had committed a wrong of sufficient magnitude that existing legal relations warranted rearrangement. Legislators surrendered the task of issuing divorce decrees, but they continued to write statutes that spelled out the terms on which judges could grant them.

The statutory grounds for divorce exhibited the mix of moral and economic interests raised by marriage. Every state legislature placed adultery on the list, and the most conservative states, like New York, included no other. Elsewhere desertion was a common ground, but so too were fraud, impotence, conviction of a felony, and habitual drunkenness.



By the end of the century, cruelty emerged as the most common ground. Its legal definition meant different things in different places. Initially, state legislatures defined cruelty as physical harm or coercion, invariably by the husband against the wife. It proved a flexible concept. In California in 1863 the Supreme Court, in Powelson v.Powelson

-165-

Powelson, rejected the idea that only physical assault constituted cruelty. "[W]e think that any conduct sufficiently aggravated to produce ill-health or bodily pain," the court concluded, "though operating primarily upon the mind only, should be regarded as legal cruelty." By 1890 the judges had gone so far as to hold that because companionate marriage in "advanced civilizations" was based on "mutual sentiments of love and respect," indignities could destroy the basis of marriage even if there was no threat of physical harm. Two years later the legislature ratified the court's action, providing that "mental suffering" could be proven even if there was no evidence of deterioration in a spouse's physical health. 34

What seemed an adversarial process was often consensual. Husbands, wives, lawyers, and even judges colluded in order to circumvent hidebound rules and to diminish the costs of an already expensive process. The legal system "winked and blinked and ignored." 35 In New York, for example, divorce required proof of adultery. An industry of sorts sprang up to meet this demand, and some lawyers, for a fee, would hire women to pose with husbands for incriminating photographs in hotel rooms.

The legal system encouraged the end to unhappy marriages, although a less cumbersome body of rules would have doubtless permitted even more. The divorce rate grew steadily through the nineteenth century, and it rose more than 70 percent between 1860 and 1900. There were 7380 divorces in 1860, or 1.2 per 1000 marriages; in 1920 there were 167,105 divorces, or 7.7 percent per 1000 marriages. More than two-thirds of all of these divorces were granted to women.

 


Date: 2015-01-29; view: 817


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