American divorce laws have come a long way since the colonial times. Some couples in colonial and early national America executed contracts of a very private and special nature. They contracted to live apart and divide their assets so that each spouse could support a separate household. In instances of conflict, or when a mutual desire to live apart could not translate itself into action without court intervention, individuals requested divorces from judicial or legislative authorities. Such divorces necessitated a division of family property or a decree of alimony for support of an innocent wife. Thus the law of divorce and separation can reveal a great deal about attitudes toward women’s rights to family property.
In the colonial period, most divorce provisions mirrored those of English law. Divorces a vinculo matrimonii, or absolute divorces with the right to remarry, were rare. Divorces a mensa et thoro, or separations from bed and board, were more readily available but still uncommon. Some colonial assemblies refused to allow any divorces at all, although equity courts provided a remedy in cases of abuse and abandonment by ordering separate maintenances out of the husband’s property. Such separations were the equivalent in effect, if not in terminology, of divorces a mensa et thoro. Other colonies developed more liberal divorce policies than were known in the mother country. Even in these jurisdictions, however, divorces remained uncommon and were considered disgraceful.
In addition to divorces a vinculo matrimonii and a mensa et thoro, couples in many jurisdictions had a third option. Under the rules of contract law as enforced by courts of equity, husbands and wives could execute binding separation agreements between themselves. Couples generally made private contracts to live apart and divide property in the form of postnuptial trusts. Until late in the eighteenth century, most equity courts refused to enforce direct contracts between husbands and wives, but they would support agreements made through third parties. Hence the prevalence of postnuptial trusts as private separation agreements. Common law courts refused to recognize the validity of any contracts made between husbands and wives, whether directly or through third parties. The law of private separation agreements, therefore, was based exclusively on equitable principles and enforced only in jurisdictions that recognized them.
Outside the law, couples exercised yet other options. Although technically illegal and therefore unenforceable, agreements to separate made without formal contracts or the intervention of third parties must have occurred on a regular basis. In numerous instances men resorted to simple desertion, generally abandoning their property along with their families. Often no legal action was taken against them, and women lived out their lives in the awkward legal position of femes coverts without husbands. If men left without a trace and were unheard of for seven years, the law assumed death, giving their “widows” the freedom to remarry.
The most bizarre divorce option to modem ears was the wife sale, a folk custom of early modem England that made its way to the colonies. Wife sales occurred after couples had agreed between themselves to separate. Symbolic “sale” of the wife, usually to a prearranged buyer who might be the woman’s paramour or a relative, represented an acceptable form of divorce in some communities. Both church and court officials generally ignored the ritual and its effects, presumably in an effort to promote local harmony. The procedure followed in a wife sale demonstrates with graphic precision the inferior status of women in early modern Anglo-American society, for in the most primitive instances the woman was led to market in a halter and auctioned off to the highest bidder.
Other local customs surface in the record now and again, revealing popular dissatisfaction with the limited divorce options recognized by law. In Pennsylvania, for example, one community relied on arbitrators to settle accounts between a woman and man who wanted to live apart. After dividing their property, a permissible step in Pennsylvania, the arbitrators went beyond the law in ordering “that Fry and his wife should separate, and either should be at liberty to marry who they pleased.” Apparently the option of applying to the state Supreme Court for a formal divorce, a possibility by 1787 when the arbitration occurred, did not seem viable to the Frys and their neighbors. As such a case of community initiative demonstrates, popular attitudes favored easier divorce laws long before lawmakers acted to create them.
English Precedent and American Policy
In England, the ecclesiastical courts heard all cases of marital discord. They granted absolute divorces to couples whose marriages were adjudged void ab initio, for such reasons as bigamy, sexual incapacity, and consanguinity (blood relationship). All children of the unions became illegitimate. Ecclesiastical courts granted divorces from bed and board for adultery of either spouse, desertion, and cruelty. Innocent women received financial support in the form of alimony—usually biannual or annual payments in cash. Divorces from bed and board did not bestow the right to remarry, as did divorces a vinculo, and the children remained legitimate if conceived before the separation. The English courts of chancery heard all disputes arising from private separation agreements created by postnuptial trusts.
Late in the seventeenth century the House of Lords introduced a new kind of divorce, designed to benefit noblemen whose wives proved adulterous. If a man first obtained a divorce a mensa et thoro from the ecclesiastical courts, and successfully prosecuted a civil suit for damages against his wife’s paramour, he could obtain a private bill of divorce from Parliament giving him the right to remarry. His wife could also remarry, with one significant restriction. She could not marry the man who was her proved lover and the cause of the divorce. Ostensibly English lawmakers designed this form of divorce to protect the property of noble families. Adulterous wives were dangerous: they could deceive their husbands into making heirs of other men’s sons. To protect legitimate heirs, such women had to be put aside. Because adulterous husbands could not introduce spurious offspring as legitimate, there was no point in allowing women parliamentary divorces. No woman received one until 1801. The rules on remarriage indicate, however, that more was at stake than the protection of hereditary estates. Men also sought to punish and control unfaithful women.
The Puritans believed in the value of liberal divorce laws. Both Massachusetts and Connecticut granted divorces a vinculo matrimonii for causes unrecognized in the mother country. Although the Massachusetts General Court did not formalize grounds for divorce, decrees indicate that men received absolute divorces for their wives’ adultery and women received absolute divorces if their husbands neglected or abused them in addition to committing adultery. There is no evidence that separations from bed and board were granted in seventeenth‐ century Massachusetts, but in the eighteenth century women received them for cruelty and men and women for desertion. Two men won absolute divorces for desertion. Connecticut refused to grant separations from bed and board for any cause. All divorces in Connecticut were absolute and gave the right to remarry. They were available from both the courts and the legislature for adultery, desertion, fraudulent contract, and seven years’ absence without word. Legislative divorces also could be obtained for cruelty.
In the colonial period only Massachusetts and Connecticut enacted statutes providing for absolute divorce and enforced them on a regular basis. Historians believe that this radical departure from English law indicates the degree to which Puritan theories influenced Massachusetts and Connecticut lawmakers. As early as 1552 Puritan divines had advocated specific reforms in the ecclesiastical court rules on divorce. In a treatise authorized by Parliament, Reformatio Legum Ecclesiasticarum, reformers suggested allowing absolute divorces for adultery, desertion, continued absence without news, and cruelty or hatred. The Puritans did not view marriage as a sacrament, sacred in the eyes of God and the churches, but simply as a civil contract, and therefore dissolvable. Although such reforms never found support in early modem England, New England Puritans attempted to enforce them. Perhaps their belief in the family as an arm of government required policies designed to strengthen the family unit. In their eyes, absolute divorces benefited society by dissolving dysfunctional unions.
New England willingness to change English law has long been noted by historians. The Puritans felt no need to adjust their principles to the demands of a government and legal system they believed corrupt and long overdue for reform. But New England fervor did not extend elsewhere. The radical divorce tradition of Connecticut and Massachusetts lawmakers stands in marked contrast to the laws of the other colonies studied. Nowhere else did colonial lawmakers break with English tradition and change the rules for granting absolute divorces. In 1705 the colonial assembly of Pennsylvania authorized annulments for consanguinity and affinity and divorces a mensa et thoro in cases of adultery, bigamy, sodomy, and buggery, but the law contained no provision for divorces a vinculo matrimonii. Later in the colonial period, the Pennsylvania assembly attempted to imitate the English parliamentary practice of granting divorces a vinculo matrimonii by private bill. The Privy Council opposed such an intrusion on Parliament’s prerogatives, however, and in 1773 disallowed a divorce bill enacted in Pennsylvania. At that time the Crown issued instructions to all colonial governors demanding that they void any divorce bills enacted in the future.
Colonial New York, Maryland, Virginia, and South Carolina were even less innovative on the question of divorce than Pennsylvania. New York changed an early policy favoring absolute divorce, and refused to allow remarriage after 1675. There is no evidence that the southern colonies ever granted absolute divorces. Legal separations were another matter, however. All the southern colonies and New York administered them through their courts of chancery. Although no jurisdiction formalized the grounds by statute, separations generally could be obtained for desertion and cruelty, and occasionally for sexual offenses such as adultery, homosexuality, or bigamy. While their more radical northern neighbors were granting absolute divorces, then, the colonies with equity courts adopted a policy of support for separate residences and alimony in the tradition of English divorces a mensa et thoro.
Requests for separations usually came from abused or abandoned wives who sought both protection in living alone and alimony. Colonial policy on separations demonstrates a powerful tradition of paternalism. Jurists reasoned that because the law gave men so much power over women, it had an obligation to protect women when husbands abused that power. This sense of obligation, although present in many areas of the law, is particularly evident in the cases on separate maintenances, for here the courts came face to face with the most dangerous shortcomings of the laws on women’s property rights. Again and again chancellors noted the helpless condition of abused or deserted wives, their need for financial support, and the duty of the judicial system to provide assistance. Thus in Taveroon v. Taveroon, tried in South Carolina in 1726, the chancellors acted the role of intermediary between husband and wife. They ordered Stephen Taveroon to pay his wife forty shillings a week as a separate maintenance, because she could not live in their home in safety. Despite the straitened financial circumstances of the couple, which the court acknowledged, and the desire of Stephen to have his wife return home, the chancellors thought it “Equitable” for the woman to receive a separate maintenance. In 1736 the South Carolina Chancery acted similarly to protect Ruth Lowndes by requiring her husband Charles to “give Security for his good Behaviour towards her.” The court awarded Ruth a separate maintenance consisting of various household utensils and furnishings, a sidesaddle, a slave woman and two children, and fifty pounds in current money.
The history of divorce in colonial New York, Maryland, and Virginia imitates that of South Carolina. Chancellors ordered separations and payment of alimony in cases of abuse. In colonial Maryland, however, a challenge arose to the jurisdiction of the Court of Chancery early in the eighteenth century. To Thomas Macnamara, an abusive husband, it was not clear that the Chancery had a legal right to provide a remedy for his wife. When he was ordered to give her clothing and personal items and pay fifteen pounds a year for support, he claimed that under Anglo-American law only an ecclesiastical court could divorce a mensa et thoro. Chancellor Seymour dismissed his argument, however, answering that “the Infancy, Low Circumstances and present Constitution of this province prevent us from being Able to pursue [an ecclesiastical suit] here for want of the said Courts or Maintenance for the proper Oficers of them.” Seymour allowed Macnamara the right to appeal the decree to England, but ordered him to follow it in the meantime. After being imprisoned three separate times for failure to comply, Macnamara finally acknowledged his obligation to meet the court’s demand and began paying alimony. No record of an appeal to England has survived, if any was ever made.
Margaret Macnamara received her separation on the grounds of cruelty and sexual misconduct. It appears, however, that charges of cruelty and desertion or nonsupport, rather than sexual misconduct, most readily convinced judges to grant women support. In Maryland, no woman used a sexual offense alone as a reason for requesting the help of the court, although women expected the charge to bolster the legitimacy of their requests. The testimony of neighbors and relatives attests to the serious nature of sexual offenses, but although adultery or homosexuality were disturbing to the morals of most settlers, charges of nonsupport and abuse formed the basis of every complaint. The sexual double standard worked to deny women separations for the infidelity of their husbands. In a suit for alimony in Maryland, a woman’s main obligation was to prove her inability to provide for herself when living separately from a dangerous or negligent man.
After winning independence, many of the new states moved quickly to reform their laws on divorce. Pennsylvania imitated the New England model by providing for judicial divorces on several grounds. In 1785 the Pennsylvania legislature enacted a statute granting jurisdiction over cases of divorce to the state Supreme Court. Appeals were allowed to the High Court of Errors and Appeals. Men and women subsequently obtained divorces a vinculo matrimonii for adultery, willful desertion of four years’ duration, bigamy, and knowledge of sexual incapacity before marriage. Divorces a mensa et thoro became available for the same causes and, in addition, for cruelty.
Massachusetts and New York followed suit in enacting post revolutionary divorce statutes. In 1786 Massachusetts lawmakers formalized grounds for the first time. Absolute divorces were obtainable for adultery, impotence, and criminal conviction carrying a prison sentence of seven years. Husbands and wives could obtain separations for desertion, and wives could obtain them for nonsupport. New York enacted its first divorce statute in 1787. Absolute divorces became available from the Court of Chancery for the single cause of adultery. Legal separations still were available for cruelty and desertion, as they had been in the colonial period. In 1813 the state assembly authorized the granting of divorces a mensa et thoro, thereby adding legitimacy to Chancery practices.
Connecticut maintained its liberal prerevolutionary statutes on divorce, although the appearance of a three-year residency requirement in 1796 indicated the state’s unwillingness to become the divorce capital of the new nation. Connecticut’s fears had validity, as demonstrated by the actions of one Pennsylvania woman, Beulah Torbert. According to Supreme Court Justice Jasper Yeates, “It appeared to us that Mrs. Torbert left her husband without cause, refused to return to him on overtures made her, and prosecuted him for adultery without cause, merely to found certain proceedings against him for a divorce, in the state of Connecticut.” Yeates made his remark in the case of Torbert v. Twining, tried in 1795.
Virginia and Maryland did not enact statutes creating new divorce policies, but their assemblies did begin to enact private bills of absolute divorce. Petitioners applied directly to the legislatures for divorces, and the grounds were not formalized. In 1827 Virginia lawmakers changed their procedure somewhat, granting jurisdiction to circuit superior courts of chancery over annulments and separations from bed and board for adultery and cruelty. The legislature retained the sole authority to grant absolute divorces until 1848. Then that power also was delegated to the chancery courts, which granted them only on a charge of adultery, as in New York. In Maryland, divorces remained a sole legislative function even later than in Virginia. It was 1842 before the Maryland legislators relinquished jurisdiction to the courts. At that time, county courts of equity gained the power to decree divorces both a vinculo and a mensa et thoro.
In the colonial period, South Carolina lawmakers had reasoned that only ecclesiastical courts had jurisdiction over divorces a vinculo. Because there were no ecclesiastical courts in South Carolina, there could be no absolute divorces. After the Revolution, the assembly continued its policy of opposition. Although South Carolina lawmakers now had the authority to legislate for divorce, they chose not to do so. Absolute divorces and annulments could not be obtained for any cause whatsoever. As Chancellor Desaussure explained in Vaigneur v. Kirk (1808), “The legislature has uniformly refused to grant divorces, on the ground that it was improper for the legislative body to exercise judicial powers. And it has as steadily refused to enact any law to authorize the courts of justice to grant divorces a vinculo matrimonii, on the broad principle that it was a wise policy to shut that door to domestic discord, and to gross immorality in the community.” Despite the continued absence of statutory rules to govern divorces, courts of chancery in South Carolina ordered separations from bed and board for cruelty and desertion, as they had in the colonial period. In most cases they did not use the term “divorce,” but their orders were identical to those creating divorces a mensa et thoro in other jurisdictions.
Given the unique characteristics of South Carolina as a slave society, it could not recognize the legitimacy of absolute divorce. Divorces most often were granted for adultery, but divorce for husbands’ extramarital affairs was impossible in a social climate condoning masters’ sexual exploitation of slaves. To allow white women the freedom to divorce for male adultery would have meant placing severe restrictions on men’s sexual behavior. That South Carolina more than Maryland or Virginia accepted the inevitability of male sexual license and refused to control it through the possibility of legislative (if not judicial) divorce is consistent with what historians know about the diverse cultures of southern slave societies. In White over Black, Winthrop D. Jordan pointed to the unusual prevalence of miscegenation in South Carolina during the eighteenth and early nineteenth centuries.
South Carolinians were less careful to conceal interracial liaisons than were other eighteenth-century slaveowners in the colonies. In this respect, they resembled the residents of the West Indies more than those of the mainland settlements. White women in South Carolina tolerated miscegenation by attempting to ignore it. Their own sexuality suffered as a result of the inevitable tensions in their marital lives. The plantation mistresses was “aloof from the world of lust and passion, a world which reeked of infidelity and Negro slaves”; in social situations they appeared formal and stiff.
The difference between northern and southern attitudes toward male sexual continence in Southern Honor. Whereas middle-class northerners were beginning to extol the male virgin in terms similar to those traditionally reserved for females, southerners continued to approve of men’s sexual freedom. Young white men were expected to have intercourse with blacks in order to gain sexual experience. Married men who remained discreet and followed the rules in pursuing their sexual liaisons with slaves encountered no criticism. The problem was ignored in polite mixed society, and not perceived as a problem at all among men.
Divorce remained rare in the South as a whole and absent in South Carolina because it threatened male honor. Although men undoubtedly did seek to protect their honor by restricting access to divorce for themselves as well as their wives, they also were safeguarding their sexual privileges. Wives were forced to ignore their husbands’ illicit behavior because they possessed no legal power to prevent or control it. They could not divorce, or in most cases even obtain legal separations. It is unsurprising that the most successful complaint in southern divorce law was a wife’s adultery. In both Maryland and Virginia, the first private divorce acts (1790 and 1803, respectively) went to men whose wives gave birth to mulatto infants. Men’s honor, and their sexual rights, could not condone a woman’s unfaithfulness, particularly with a black man.
The Question Of Support: Separate Maintenances
Whether in North or South, when a marriage broke up, so did family property. Divorces a vinculo matrimonii often required a final disposition of all property owned by the husband and wife, although at times courts ordered awards of yearly alimony for women. When all the family property had to be divided by the courts, they proceeded according to the rules on inheritance. Women usually received one-third to one-half of the estate owned during the marriage. The award could consist of either real or personal property or both, depending on the circumstances of each case. Divorces a mensa et thoro generally included provisions for monetary payments to the wife, while the husband maintained his marital right to control family property. That variations on these patterns are common in the records, however, indicates legislative and judicial willingness to meet the needs of individuals. In determining alimony, moreover, chancellors could be affected by the behavior of the parties, granting more or less according to their impressions of the conduct involved. Women guilty of adultery received no alimony at all, and even the conduct of innocent women was subjected to close scrutiny. Thus in Peckford v. Peckford (1828), a suit for divorce on the basis of the husband’s adultery, the New York chancellor noted, “If the wife had been perfectly discreet, prudent, and submissive to her husband, I should have allowed her half of this property.” Because she had traveled to England against the wishes of her husband and “exposed him to temptation,” he awarded her only a life annuity equal to the value of one-third of their property.
In states with separate courts of equity, lawmakers gave jurisdiction over questions of property to the chancellors. The tradition grew out of chancery’s control of cases concerning women’s property rights, as well as the special ability of the masters in chancery to settle matters of account. Thus, even when legislative bodies enacted private bills of divorce, as in the Chesapeake states after the Revolution, chancery courts continued to exercise authority over separate maintenances.
Chancery courts in Maryland enforced both divorces a mensa et thoro and private agreements to live apart and divide property. The chancellors also heard all suits for alimony by women who received legislative divorces. In Maryland, then, all decisions concerning the division of property, even those arising from absolute divorces ordered by the assembly, came from the chancellors. This practice began early in the colonial period, with the case of Galwith v. Galwith (1689), and continued into the nineteenth century, despite an attempt by the legislature to assume jurisdiction in Crane v. Meginnis (1820). In this case the Court of Appeals overturned a legislative decree of alimony because it represented a usurpation of judicial powers. As Justice Earle observed, a suit for alimony was distinct from a suit for divorce in Maryland, and recoverable only from the Chancery Court or the Court of Appeals. Because suits for alimony had always been heard by chancellors, the legislature could not now take over jurisdiction.
Before the Revolution, Pennsylvania rules on separate maintenances followed the usual guidelines, but with passage of the divorce statute of 1785, the law on alimony developed an unusual twist. Under the laws of the state, only divorces from bed and board gave a woman the right to alimony. Absolute divorces did not carry alimony, for they ended all marital obligations, including the wife’s right to financial support. Couples in Pennsylvania did divide family property at the time of divorce, but in poor or even middling families, the right to a share of collective assets meant less to women than the right to a portion of their husbands’ earnings. Significantly, the other jurisdictions studied did not adopt similar policies. They granted innocent women alimony, even in cases of absolute divorce.
In Pennsylvania, men and women could choose which kind of divorce they wanted, whether absolute or from bed and board, for most grounds. Under the act of 1785, both kinds of divorce were available for adultery, bigamy, desertion of four years’ duration, and knowledge of sexual incapacity before marriage. But until 1815, divorces for cruelty, or forcing a woman to leave her home, brought only separations from bed and board. After 1815, a woman could make an election in a case of cruelty. It is interesting to note that when a choice was available, some women preferred separations with alimony to absolute divorces. Their decision may indicate that they preferred the financial security of a decree of alimony to the right to remarry. Given the poor preparation for earning their own livings that most women received in early America, their behavior is hardly surprising.
Barbara Klingenberger was one Pennsylvania wife who preferred alimony to the right to remarry. In her original petition to the Court of Common Pleas of Westmoreland County, she asked for a divorce a vinculo matrimonii with alimony. It was not possible to grant such a request under the laws of the state, and therefore the court decreed a divorce from bed and board with alimony. Barbara apparently was satisfied with the decree, but her husband appealed to the Supreme Court, arguing that because Barbara had asked for an absolute divorce, she should have been granted one. In his opinion on the case, Chief Justice Tilghman noted the inconsistencies of Barbara’s petition, but decided that she wanted alimony. He wrote, “The petition was informal, and prayed for things which were inconsistent, viz.: a divorce from the bond of marriage and alimony; and perhaps, alimony was to the petitioner, the most important of the two.” He pointed out that Barbara had not appealed the decree or reapplied for a divorce a vinculo.
In Massachusetts, a provincial statute of 1695 had given the Superior Court of Judicature jurisdiction over alimony. In the colonial period the governor and council usually determined the kind and amount of support. Alimony usually consisted of cash payments to women, proportionate in amount to the family’s wealth and status in the community. Men frequently refused to pay alimony. Petitioners who won separate bed and board thus had an ambiguous success, not being allowed to remarry, nor released from the economic constraints of the marriage contract, nor guaranteed current support.
Under Massachusetts law women divorced a mensa et thoro did not enjoy the legal status of femes soles. In the eyes of the law they remained married, and therefore they could not contract, sue, or be sued in their own names. Women must have suffered considerable economic hardship under such divorce decrees. Divorces a vinculo matrimonii did not similarly handicap women. They became femes soles again, earning independence in the marketplace as well as in the household.
Given the lack of financial autonomy awarded to women divorced from bed and board, it is interesting to note that this was the only form of divorce granted to women in Massachusetts on the grounds of desertion and cruelty, although women who charged their husbands with adultery in addition to desertion or cruelty could receive absolute divorces. Obviously Massachusetts jurists believed sexual misconduct to be the worst offense against the sanctity of the family. Cases of nonsupport, desertion, or cruelty did not excite the full compassion of the courts. That these charges were also the ones made almost exclusively by women indicates a sexual bias in the handling of divorce decrees. Women in eighteenth-century Massachusetts noted the distinction and apparently took it into account in bringing suits for divorce and separation. Whereas men always sued for absolute divorces, women did not. “They requested divorce or, if that were not possible, whatever the governor and Council were willing to grant.”
The Massachusetts policy on divorces a mensa et thoro was in agreement with the policy on feme sole traders generally. No colonial statute outlined a procedure for granting married women independence in commercial affairs. Such a statute did not appear until after the Revolution. The creation of a formal policy at that time probably also affected the granting of divorces. Separations from bed and board for the cause of desertion were no longer technically necessary after 1787. Women could apply for feme sole trader status instead. In fact, their rights under the statute were stronger than their rights under Massachusetts divorce law. Passage of the statute of 1787 may have served, then, as an alternative to divorce in Massachusetts.
Connecticut policy on separate maintenances differed significantly from that of Massachusetts. No divorces a mensa et thoro were granted in the colony or state. Until 1811, the courts also refused to recognize or enforce private agreements between husbands and wives to separate and divide property. In Connecticut, couples either were married or were not. There was no in-between status by which some marital privileges were recognized, such as a wife’s right to support, and others were not. Connecticut law followed the suggestions outlined in the Puritan reform treatise of 1552. The reformers did not advocate divorce a mensa et thoro, and neither did Connecticut lawmakers. In this New England colony and state, therefore, couples received absolute divorces for desertion of three years’ duration, seven years’ willful absence without word, and cruelty, as well as for adultery.
Although Connecticut earned criticism from other jurisdictions for its liberal divorce policy, the policy was retained throughout the colonial and early national periods. Apparently the rules served the interests of residents well, perhaps in part because divorce substituted efficiently for rules allowing married women independent property rights. The General Assembly of Connecticut never enacted laws to govern the legal rights of independent businesswomen or women living separately from their husbands on an informal basis. Lawmakers believed that women already had a remedy in the rules on divorce, because each Connecticut divorce decree gave the husband and wife the legal status of unmarried persons.
Equity Law And Private Separation Agreements
The colonies and states with conservative policies on absolute divorce, New York, Maryland, Virginia, and South Carolina, lent particularly strong support to private separation agreements. Their policy grew partly out of a strong commitment to marriage settlements. Under equitable rules and principles, postnuptial settlements could be agreements to separate, and if they were made through trustees, courts of chancery felt the same obligation to enforce them as other marriage settlements. Despite their greater reluctance to grant absolute divorces, particularly in the colonial period, the jurisdictions with courts of chancery allowed the equivalent of divorce a mensa et thoro at the will of the parties. Such a policy denotes in some sense a liberal attitude toward divorce, for even in Connecticut a petitioner had to demonstrate cause to win a court-ordered separation.
Although jurists supported postnuptial contracts to separate, conservative attitudes surfaced in postrevolutionary judicial decrees. For example, although equity courts increasingly supported direct contracts between husbands and wives, that is, contracts executed without trustees, they did not extend the new principle to separation agreements. Unless executed as trusts, private agreements to live apart and divide property were liable to be overthrown. A dislike of separations, which were increasing rapidly in number in the postrevolutionary era, prompted courts to enforce private separation agreements only when forced to do so by the weight of judicial precedent. If executed as postnuptial trusts designating a division of property between husband and wife, the courts had to enforce them, not because they were socially acceptable agreements to live apart but because they were legal agreements to divide property. Given a choice, some jurists would have preferred to stop the practice.
Just like the other colonies and states with equity courts, New York supported private separation agreements made through the medium of trustees. New York imitated English practice in this area of the law beginning in the colonial period, and did not change its policy after the Revolution despite the growing opinion among jurists that separation agreements went against good public policy. New York chancellors refused, however, to support private separation agreements when the law behind them was not absolutely clear. In Carson v. Murray (1832), for example, the Chancery Court supported a separation agreement because it was made through trustees, whereas in Rogers v. Rogers (1834) it refused to validate an agreement made directly between a husband and wife, without the intervention of a third party. In Rogers v. Rogers, the chancellor expressed his disapproval of private agreements by men and women to live apart. He claimed to support them only as standard postnuptial trusts, and not as contracts beneficial in themselves to society. Like Swift, the New York chancellor opposed giving couples the right to separate at will. He wrote, “It is impossible for a feme covert to make any valid agreement with her husband to live separate from him, in violation of the marriage contract and of the duties which she owes to society, except under the sanction of the court; and in a case where the conduct of the husband has been such as to entitle her to a decree for a separation. The law of the land does not authorize or sanction a voluntary agreement between husband and wife. It merely tolerates such agreements when made in such a manner that they can be enforced by or against a third person acting in behalf of the wife.” Without that intervening third party, he felt no compunction about voiding the contract.
The chancellor from New York thus echoed sentiments expressed by southern jurists who opposed divorces but supported private agreements to separate. At times the contradiction in policy was acknowledged openly, both by attorneys and by judges. As one New York jurist observed, “However strange it may seem … that the agreement for a separate maintenance, which is merely auxiliary, should be enforced, whilst the principal agreement, viz. for a separation, is held to be contrary to the spirit and policy of the law, yet the decisions on the subject seem too numerous and uniform to be easily shaken.” Even though some early United States chancellors were unwilling to admit it, separation agreements served an important social function in a country that considered divorce a disgrace, and yet gave women few property rights unless they were separated legally from their husbands. Agreements to divide property also acted as a vital force behind the nineteenth-century movement to allow divorce at the will of the parties.
According to the rules of early American law, husbands had an obligation to support their wives. Under a legal system that gave male heads of household control over wives’ real property and ownership of their personal property, the guarantee of support served as compensation to women for their losses. The inability of married women to contract or to prosecute and defend suits at law further increased their need for financial support. Under standard common law rules, women did not possess the means to take care of themselves; men had to care for them. In a statement explicitly outlining the judicial reasoning behind women’s limited property rights, Justice Putnam of the Massachusetts Supreme Court first listed the ways in which married women found themselves restricted under the law, and then observed, “For these disabilities she is liberally recompensed by the obligations which the marriage imposes upon the husband to provide for her support during coverture, and by a claim for dower after its dissolution.”
Inevitably, some men chose not to protect and provide for their wives, and the law developed rules for the exceptional cases. Divorce and legal separation served as a way of correcting and compensating for dysfunctional family relations. When abusive husbands forced wives out of their homes, courts moved aggressively to remind them of their obligations. If a man was not willing to treat his wife in a way that permitted her to remain at home in safety, then he became liable to support her in living elsewhere. This premise helps to explain the attitude of American jurists toward cruelty as a cause for legal separations. Under the laws of the colonies and states, cruelty had to be severe enough so that a woman feared bodily harm or death in order to win her a separate maintenance. Occasional, slight acts of physical violence were not enough to gain judicial support for a separation, nor was what today we would call incompatibility or mental anguish. Such things, although reprehensible, did not threaten life or limb. A woman could live with them. But when the degree of cruelty escalated to a level that required a wife to leave home, the courts acted uniformly in offering her help. Under American legal theory, women did not have to provide for themselves when they were forced to live separately from their husbands because of abuse or neglect.
When viewed from the perspective of divorce law, women’s property rights in the early decades of the nineteenth century truly represented an ideal rather than reality. In theory, a woman did not need to own property because her husband provided for her. But in order to justify giving husbands control over what women owned at marriage as well as the profits of their labor during marriage, the law had to ensure men’s financial support of their wives. During the early national period, courts and assemblies increasingly realized that their ability to guarantee women the ideal—support during marriage— was being undermined by practical considerations, including new attitudes toward marriage and divorce. In a society that was beginning to accept divorce as valid on many grounds, women living separately from their husbands became less exceptional. Society gradually realized that it could no longer deal with separated couples as deviant cases outside the ideal. They became a group representative of new views about marriage, including recognition of the individuality of husbands and wives and acceptance of conflicting interests. In response, lawmakers reluctantly adopted positions designed to reflect changing social attitudes toward marriage, separation, and property. They began to expand married women’s property rights.
The spectrum of rules on divorce and alimony in the early states demonstrates that to lawmakers and jurists, there were no obvious solutions to the problem of how to define changing relationships between men and women. New York, Virginia, and Maryland, for example, did modify their strict colonial policies of opposition to absolute divorces, but their rules remained conservative in comparison to those of the New England states and Pennsylvania. All three conservative states, however, continued their pre-revolutionary policies concerning divorces a mensa et thoro and private separation agreements, an indication of their satisfaction with those rules and their desire to preserve them.
Despite the post revolutionary increase in divorce suits, all American jurists continued to express their belief in the necessity of strong family ties. Their perspectives on how best to promote family unity varied considerably, however, and their different responses reflected the various social, religious, economic, and legal circumstances that shaped their diverse cultures. Connecticut jurists believed that the best way to protect the family as they knew it was to deny women the ability to own separate property. Absolute divorce was far better for the morals of society than opposing interests within marriage. South Carolina was forced by peculiar circumstances to argue exactly the opposite point. Married women in the state were relatively free to own and control property if they chose to do so, and their rights to court-ordered separate maintenances were also guaranteed. But they could not, under any circumstances, remarry. That rule, South Carolina lawmakers maintained, was necessary to uphold the sanctity of the family.
The other jurisdictions fell between the extremes represented by Connecticut and South Carolina. They recognized several kinds of divorce and determined which was most suitable in particular situations. The common theme in all jurisdictions, however, was a reluctance to grant divorces at all. Divorce represented an ultimate breakdown, not only in family relations, but also in the delicate property arrangements of husbands and wives. Only death was similarly disruptive, demonstrated by the fact that jurists frequently ordered property settlements at divorce in the same way they did at death.
Even a cursory look at the divorce rate and trend in past decades shows the susceptibility of the divorce rate to short- and long-term fluctuations. For example, the rate of divorce dropped during the Great Depression of the 1930s, and quickly returned to its earlier level afterward. Then, toward the end of World War II and immediately after, it increased dramatically and reached a peak in 1946.
The United States has among the highest divorce rate among the industrialized countries, but it also has among the highest marriage and remarriage rates. Divorce was for decades perceived not only as an indication of pathology in divorcing individuals, but also as a social disease. The implicit and explicit prevailing belief was that divorce was harmful to the individuals involved and to society, and was an offense against God. Therefore, a remedy had to be found. The problem was at first believed to be the immorality of those involved; and the appropriate response was therefore censure and punishment. Later, as social scientists looked at the broader picture, they assumed that social ills were also to blame for the breakdown of families. They called on lawmakers to solve at least some of these social defects, and to protect the victims by raising high legal barriers against divorce. The psychological approach offered yet another view: Marital dissolution stems from the difficulties experienced by individuals. Therefore, divorce had to be eradicated by psychotherapeutic means and by providing support to families in crises.
More recently, the U.S. ideology of the family has emphasized personal fulfillment as the main reason for maintaining family relationships, and love as the basis for marriage. Most people do marry, probably expecting that the promises of this ideology will be fulfilled. But they find themselves pressured into organizing their family life along other (less romantic but more dominant) dimensions. Internal family responsibilities, the demands of formal organizations, gender role stereotypes, social restrictions, and societal prescription regarding family life complicate, and may even preclude, finding personal satisfaction within the family setting.
Divorce is often the consequence. But people rarely view their divorce in these terms. Social and structural factors are largely invisible to people who must cope with the personal consequences of these factors on a daily basis.
So long as divorce remained a relatively rare phenomenon, affecting only a small proportion of the population, it was accounted for in highly individualistic terms. Having learned that marriage results from being in love with the right person, divorcing people consider themselves or their partners as responsible for marital breakdown. Divorce came to be viewed primarily as a matter of mistaken choice, as only a personal, not a social structural, failure. The language of guilt and innocence, blame and vindication has thus been used as an explanatory framework by the divorcing individuals. The community views divorce similarly, reinforcing the perception that both happy marriages and divorces are functions of mate selection.
Divorce and The Law
No area in which society touches family life has changed as rapidly and dramatically since the 1970s as the legal procedure for dissolving a marriage.
Until 1970, there were legal restrictions and specified grounds for divorce. The legally accepted reasons for breaking up a marriage were adultery, desertion, cruelty, and non-support.
Under the old legal system, the legal proceeding needed to be, and indeed was, adversarial. It required that one party should be found guilty of wrongdoing and responsible for the family breakdown. That person was to be punished by the court vis-à-vis the post divorce financial settlement. This traditional law reflected the social norms and accepted beliefs of the time: Marriage should be a lifelong commitment and that a man and a woman should devote themselves to each other, to their children, and to their home. In time, these assumptions about marriage, divorce, and gender-based division of roles and responsibilities came to be questioned. The public’s growing awareness of the gap between these assumptions and reality brought pressure to bear on lawmakers to reform the divorce laws.
The “divorce revolution” began in 1970 when California’s state legislature enacted the no-fault divorce law. The no-fault law conditioned divorce only upon one partner’s assertion that “irreconcilable differences have caused the irremediable breakdown of the marriage”. The underlying assumption reflected in this law was that bad marriages should be dissolved, that economic circumstances should determine alimony and the division of family assets, and that children, where possible, should maintain contact with both parents.
There is no uniform code of divorce law that is applied in all 50 states. However, most states adopted some variation of no-fault divorce laws. In some states, the divorcing couple must live apart for a certain period of time (from 6 months to 3 years) in order to obtain a legal divorce. In other less conservative states, “incompatibility” or “irreconcilable differences” must be shown by one partner if the other objects to the divorce. In most of these cases the fact that one partner chooses to leave the marriage is considered a sufficient proof of the need to divorce. Moreover, in some states, a divorce decree will be granted if one partner decides, for whatever reasons, that the marriage has reached a point of “irretrievable breakdown”. Under Utah law, to file for a divorce on no fault grounds you must meet certain requirements. You must meet the Utah residency requirements. To know if you can file for a divorce in Alpine on no fault grounds, speak to an experienced Alpine Utah divorce lawyer.
These reforms in family law appear to have emanated from changes in the larger fabric of society. Social trends and changes such as the women’s movement, women’s greater participation in the labor force, greater sexual freedom, the self-actualization theme of the 1960s and 1970s, and of course the increase in divorce rate, put the pressure on the lawmakers to change divorce statutes so that they might better reflect these social realities. A small part of these realities, which may nevertheless have been a strong motive for liberalizing the divorce law, was the fact that some lawmakers had themselves experienced painful divorces.
However, no-fault is not only a change in a legal code, it represents a cognitive scheme. Not only did it eliminate the need to prove a spouse’s misconduct, but “it eliminated the concept of fault itself”. The new law was connected with the trend that took moral issues out of the hands of social and governmental institutions, and promoted individual freedom and equality between men and women. It was also compatible with the rejection of the traditional patriarchal pattern of the family, and with the demand that adult men and women be treated as autonomous and equally responsible for breakdowns in their marriage and for their life after divorce.
Several purposes were to be served by the reform of the divorce law: (a) the elimination of the need for hypocrisy, perjury, and collusion often required by the fault system, (b) the reduction of the levels of bitterness and suffering that are part of the divorce process, and (c) assistance given to reach a fairer and more rational financial settlement.
No longer does one partner need to file suit against the spouse on grounds such as adultery, mental cruelty, physical abuse, desertion, or other such marital misconduct. The basic premise for “fault” divorces was that there was one “right” and/or “innocent” party and one “wrong” and/or “guilty” party that needed to be punished. By replacing the old system with a single new standard of “irreconcilable differences” there is no longer a need to invent false reasons for divorce. More importantly, the new system recognizes that in marital breakdown, there is no guilty or innocent party. Now as far as the personal relationship between spouses is concerned, the legal process of divorce begins and ends with a “petition for dissolution,” where no justification need be given. The language that is used under the new system reflects this non-adversarial approach to the legal process. Although the rationale underlying the old divorce law was protection, that of the new law is equality. In the past, it was assumed and generally accepted that the state had a legitimate role in protecting the family and its members in the case of one partner’s gross misconduct. If that partner was physically abusing or committed adultery, he or she would be severely penalized by the court when financial arrangements were considered. The reformers sought to grant financial settlement based on the prevailing social norms; that is, personal freedom and the principle of equality between the genders. No more were property and alimony to be granted on the basis of either fault or gender-based role assignments. Each spouse has equal right to the accumulated wealth of the family. Under the new system, the husband is not solely responsible for financial support, nor is the wife solely responsible for caring for the children. The new standards for property division and alimony reflect the legislators’ belief in the responsibility and ability of each spouse to achieve self- supporting status. In addition, the “child’s best interest” guideline assumes no inherent advantage for mothers in custody hearings. Not only are fathers and mothers equally responsible for the financial welfare of their children, they are also equally responsible for their children’s overall well-being.
Adultery is a ground for divorce in Utah. Consult with an experienced Alpine Utah divorce lawyer if you want are seeking divorce on the grounds of adultery. Adultery is the voluntary sexual intercourse of a married man or woman with a person other than the offender’s spouse. Today Utah divorce laws make adultery a ground for divorce. An examination of the decisions will give some notion of what adultery is. A man may be guilty of adultery, even though the offense was committed with a woman who was stupefied with liquor at the time, or where the act was committed without the consent of the woman. It has been said that if a man chooses to marry an unchaste woman with full knowledge of her unchastity, he cannot obtain a divorce for her subsequent adultery, but this is not true. The true test is not knowledge of previous conduct but a violation of the conditions of the marriage after it has been entered into. Even though a man had illicit sexual relations with his wife before marriage and married her while she was an inmate of a house of prostitution, those facts do not vitiate his right to a divorce for her refusal to leave the house and to discontinue her adulterous acts. Voluntary separation does not grant a license to commit adultery, and it is generally held that under such circumstances the innocent party may have a remedy against the other by way of divorce.
Adultery may be proved by circumstantial evidence, but the courts often say that it must be of a “clear and positive” nature. The defendant is entitled to the same presumption of innocence as in criminal cases. It is not necessary to prove the defendant guilty of adultery “beyond a reasonable doubt,” but it is sufficient if he is found guilty by a “clear preponderance of the evidence.” In proving adultery where the parties are not caught, two elements are required: the opportunity to commit the act, and the inclination to commit it. For example, if a man takes a woman to a hotel and retires with her to a room for the night, that is sufficient to prove both the opportunity and inclination to commit adultery.
Cruelty is a cause for divorce in Utah. The courts generally content themselves with determining whether the facts in the particular case constitute cruelty. The early decisions required physical violence upon the person with danger to life or health. A single act of violence will not ordinarily serve as a ground for divorce if it is committed in a heat of passion and there is no likelihood that it will be repeated. However, if the single act was very severe and involved malice, it may be sufficient cause. Again, where one of the parties commits a series of less serious acts, and there is a likelihood that they will be continued, even though no one of the acts would be sufficient by itself, the cumulative effect of the acts is cruelty. When the mental injury is such that it preys upon the mind and undermines the health, though the suffering is caused by words or conduct unaccompanied by an act of physical violence, the result is bodily harm and therefore the conduct producing the mental suffering is legal cruelty. In other words, without repudiating the early theory that the injury must be physical, the courts admit that legal cruelty may come about from continuous nagging and abuse, humiliating insults, and other mean and annoying conduct which cause mental suffering and consequent ill-health. The chain of causation is indirect, but the ultimate result is an injury to health. Under the indirect injury to health doctrine, divorces have been granted on the ground of cruelty for harsh and humiliating language or demeanor, for the wife’s or husband’s constant nagging, for making false charges of infidelity, and for such things as the husband telling the wife of his love for someone else, for unfounded accusations of crime and misconduct, for studied vexations and deliberate insults, and for stopping payment on checks and destroying credit. Excessive sexual demands by the husband upon the wife is not an uncommon ground for divorce. If you are a victim of cruelty by your spouse, speak to an experienced Alpine Utah divorce lawyer. The lawyer can help you get a divorce from your cruel spouse.
Desertion is another ground for divorce in Utah. Before desertion becomes a legal ground for divorce, certain elements must be present: (1) a cessation of cohabitation, (2) desertion for the period prescribed by statute, (3) an intention to abandon, (4) want of consent on the part of the party abandoned, and (5) unjustifiable abandonment.
There is no simple or uniform statutory definition of desertion as a cause for divorce. Many courts hold that if the husband drives his wife away from him, his conduct will amount to desertion as clearly as if he had left her. When either spouse after having been gone for some time offers in good faith to return, but is rejected, unless such rejection is justified it will amount to desertion. There must be an intention to abandon. The intent to abandon need not be shown by direct evidence, but may be inferred from the circumstances, as when there is long absence without justifiable cause. Desertion must be without the consent of the abandoned spouse. If there is a separation by consent, either expressed in the words of the parties or inferred from the acts of the parties, desertion cannot be relied upon as a cause for divorce. The abandonment must be unjustifiable. If either spouse is guilty of such misconduct as to create proper grounds for the other’s departure, the latter’s absence will not make out the necessary desertion. The question often arises as to what kind of conduct is sufficient justification for one spouse to leave the other. There is serious conflict on this question, and some courts stand strictly upon the principle that nothing but conduct which is a ground for divorce will justify one spouse in leaving the other. Never attempt to file a divorce petition in Utah on the grounds of desertion without the assistance of an experienced Alpine Utah divorce lawyer. Proving abandonment is complex and requires skill and expertise. This is best left to an experienced Alpine Utah divorce lawyer.
Ordinarily, if impotence exists at the time of the marriage it is a ground for annulment. Annulment is different from divorce. Speak to an experienced Alpine Utah divorce lawyer to know the various grounds on which you can seek an annulment of your marriage.
It is well recognized that excessive indulgence in intoxicating drinks as a fixed habit is habitual drunkenness, and this is true even though there may be intervals when the party refrains entirely from the use of intoxicating liquors. The courts have held that neither occasional drunkenness nor habitual but moderate use of liquor will constitute a ground for divorce. A wife cannot set up habitual drunkenness as a cause if at the time of the marriage she had full knowledge of the existence of the habit.
Grounds for Refusing to Grant Divorce: Defenses
General and Special Defenses
The defenses to actions for divorce may be classified as general and special. The general defenses belong to the parties as litigants and are such as may arise in any law suit. The special defenses have been developed to protect all those likely to be affected by the dissolution of a marriage. It is the policy of the law to encourage the continuance of the marriage relation once it has been brought into existence. The law, therefore, encourages the defense of divorce actions. There are four generally accepted special defenses: collusion, connivance, condonation, and recrimination.
Collusion is any agreement between the parties by which they endeavor to obtain a divorce by an imposition on the court. Its essence is fraud upon the court. As demonstrated by cases, this fraud may appear in at least three forms: (1) by the commission of an offense for the purpose of obtaining a divorce, (2) by the introduction of false evidence of an offense not actually committed, and (3) by suppression of a valid defense.
Connivance is the corrupt consenting by one married person to the marital offenses and acts of the other. The theory back of the connivance doctrine is that one who has consented to an act or wrong cannot be said to be injured by it and therefore should not be given the privilege of taking advantage of it as a ground for divorce. From the cases it seems that connivance appears most often in connection with adultery. A husband’s connivance at his wife’s adultery has often been held a bar to a divorce for the particular act connived at.
Condonation is the forgiveness of a marital offense constituting a ground for divorce. It is necessary to look into the cases to see what offenses may be condoned, what is necessary to constitute condonation, and what are the effects of the condonation. That the doctrine applies to adultery is too well recognized to discuss. It applies to cruel and inhuman treatment, and perhaps to every other offense that constitutes a ground for divorce. An offer to forgive is not condonation unless it is accepted and acted upon by the other party, nor is the mere writing of letters in affectionate terms by the aggrieved spouse to the guilty one. Sexual intercourse with knowledge of a prior offense is the type of conduct which will make a case of condonation. Formal forgiveness is not essential to condonation, for the forgiveness may be implied from the conduct of the parties. There can be no condonation without knowledge of the offense committed, so that continued cohabitation cannot be construed as forgiveness if there is no realization that an offense has been committed.
Recrimination is a counter charge that the complaining party has also been guilty of an offense constituting a ground for divorce. The doctrine of recrimination is grounded on the old equity theory that one who asks relief must come into court with clean hands, and that divorce laws are made to give relief to the innocent and not to the guilty party.
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