DIVORCE AND DESERTION

Early Americans expected to marry, and they generally understood marriage as the appropriate, even natural, state for adults. Moreover, they believed that stable marriages promoted social order. Conversely, Americans typically considered separation and divorce as personal and moral failures that imperiled society and conceived of divorce as a drastic remedy to an otherwise insolvable problem. Nevertheless, marriages did break down, and unsuccessful couples sought escape from such matches.

Some colonies (after 1776, states) allowed for divorces a mensa et thoro (from bed and board). With these limited divorces, couples severed their finances and residences but could not remarry. A full divorce terminated a union and legalized remarriage. In colonial America, only New England allowed full divorces. Some couples in locales forbidding either of these forms of divorce sought legal separations—equitable agreements in which couples divided property but could never remarry. Ending a marriage did not, however, require legal adjudication. Couples self-divorced without consulting authorities. Extralegal separations, often deriving from desertion, remained the easiest and perhaps most common means of ending a marriage between the 1750s and the 1820s.

Because states set marriage laws, the mechanics of pursuing divorce varied widely. In many states in the early Republic (1780s–1820s), legislatures oversaw divorces; in some, courts handled suits. For a time several states operated under a dual jurisdictional system, with both the legislature and courts hearing cases. (As laws governing divorce relaxed and petitions rose, legislators found themselves inundated with requests, so they turned over divorce authority to courts.) Grounds for getting divorces varied by state and included adultery, desertion, cruelty, bigamy, incest, and fraud. As states passed these diverse laws, they inadvertently legitimated and increased divorces.

Americans linked marital bonds and social stability, so divorces in early America were public matters. Legal authorities and communities judged whether separations or divorces seemed justified, based on public interests. Separating spouses needed their neighbors to support their behaviors and legal actions. Petitions often included testimony or signatures of neighbors, which validated the cases, if not in the eyes of the law, at least in the minds of community members.

Because of the presumed link between marriage and social stability as well as the widespread conviction that casually ending unions was immoral, divorce required proof of a gross violation of marital and community mores. Authorities sanctioned divorce only if supporting a marriage threatened order and morals more than did severing it. Further, a successful petition required a guilty party and an innocent victim. For example, a wife seeking a divorce needed to demonstrate both that her husband willfully abrogated his duties and that she fulfilled her obligations despite his failures.

colonial patterns

Before the Revolution the southern colonies, following English precedent, viewed marriage as indissoluble. In England divorce could be secured only by an exceedingly rare act of Parliament, and ecclesiastical court hearings preceded applications to Parliament. In the southern colonies the absence of such courts precluded the legislatures from hearing divorce petitions. No southern colony granted a divorce before the Revolution. Southern courts did occasionally oversee separation agreements between dissatisfied spouses.

New England, conversely, interpreted marriage as a civil contract, and colonies including Massachusetts and Connecticut gave divorces to both husbands and wives. Colonial New Englanders allowed annulments for individuals who proved that their spouse was sexually impotent or committed fraud and bigamy (one partner lied to the other about being single). Cruelty could be legal grounds for a bed-and-board divorce in colonial Massachusetts. Successful petitioners most often proved their spouses guilty of adultery, the ultimate violation of marriage. In all cases, colonial New England required petitioners to prove themselves dutiful and blameless despite their partner's wrongdoing. Not surprisingly, discontented spouses found abandonment their least complicated, and sometimes only, option.

after independence

Divorce laws and attitudes changed significantly during the Revolutionary era. All but one of the southern states created divorce laws after independence. Pennsylvania also designed clear procedures for divorce in 1785. A statute during this period ensured the right to divorce in the newly created Northwest Territories. In locales that allowed divorce prior to the Revolution, the number of petitions relative to the population rose after 1776. Two states, New York and South Carolina, diverged from this pattern. South Carolina became the only state forbidding divorce in the new nation. It did not allow full divorces until 1868, but revoked that legislation ten years later, continuing the prohibition into the twentieth century. In 1787 New York, in a move similarly at odds with the national trend, adopted a strict code. Despite these exceptions, the nation clearly moved toward more liberal attitudes and laws regarding divorce. The steadily rising divorce rate from the 1780s to the 1860s testified to Americans' growing (if still reluctant) acceptance of the occasional need for ending unsuccessful marriages. Typifying national patterns, Maryland granted its first divorce in 1790. By the 1830s the legislature validated over thirty per year.

While divorce expanded in most parts of the early Republic, the West outpaced the Tidewater states. Western states allowed more grounds for divorce and required shorter periods of residency than eastern states. In some of the western states, proving "marital breakdown" could secure a divorce. Tennessee ranked among the most liberal jurisdictions in the South. Indiana, which coupled expansive grounds with lax residency rules, became renowned as America's first divorce mill.

The move toward more flexible laws in the early national era derived from a growing conviction among white Americans that divorce, in cases where one party egregiously violated the marriage, was a clear right. This new recognition of divorce as a fundamental freedom emerged in tandem with republican political culture. Ideas about the contractual nature of government and the rights of individuals infused Americans' thinking about divorce. Changing marital values reinforced this mind-set. The heightened emphasis on romantic love after the mid-eighteenth century raised marital expectations (and thus disappointments) and produced more divorce as individuals married for love and felt entitled to satisfaction.

This new enthusiasm for individual rights and self-fulfillment clashed with the traditional belief that preserving marriages upheld social stability. Divorce attitudes thus bore the mark of the central political issue in the early Republic: balancing individual rights with civic order. Statistics demonstrate both a growing interest in divorce and a powerful resistance to it. On the one hand, Americans pursued divorce at a much higher rate than that of their colonial ancestors and British contemporaries. Between 1670 and 1857, when Britain revised its divorce laws, Parliament allowed only 325 divorces. In comparison, between 1670 and 1799 Connecticut granted nearly 1,000 decrees. Tennessee's legislature authorized 111 divorces between 1797 and 1833. On the other hand, although more common than in England and the colonial past, divorce in the United States was no simple matter. Cases dragged on for months and years, and many petitioners lost. For example, between 1786 and 1827 only one in five petitioners to the Virginia legislature secured either a divorce or a separation. The Pennsylvania Supreme Court, more accommodating than many, rejected over half the appeals received between 1785 and 1815.

desertion

Although divorce became more available and acceptable in the early national era, many unhappy white couples, particularly the husbands in such couples, continued to rely on extralegal means to extract themselves from undesirable matches. Desertion, informal separations, even bigamy (in the form of serial monogamy without legal divorce) offered spouses an effective if illegal escape from unsuccessful marriages. Many more men than women abandoned marriages. Deserters found that the expanse of the nation, the general mobility of the population, inefficient communications systems, and inconsistent record-keeping all abetted their abandonment. Individuals who deserted their marriages sometimes sought divorces in more accommodating jurisdictions such as Indiana; others remarried without formal divorces. Although illegal throughout the nation, bigamy occurred everywhere, in the form of desertion and remarriage. Historians cannot quantify the number of men and women who deserted one family and started another. However, they speculate that desertion was the most common way to end a marriage, as spouses could self-divorce—pursue their individual desires—without the scrutiny, expense, time, and possible failure that legal divorce entailed.

racial variations

Native American and African American divorces typically occurred beyond the legal parameters designed for white Americans. Native American nations exercised less oversight over sundering failed marriages (which whites took as evidence of their immorality). Cherokees, for example attached no particular stigma to couples that ended their unions. Although the annual Green Corn Ceremony provided a venue for publicly acknowledging divorces, Cherokees terminated marriages by physical separation. Because of their matrilineal culture (common among native nations), divorcing Cherokee husbands left their wives' households and returned to their mothers or sisters. Children always stayed with their mothers.

African American slaves enjoyed no formal legal sanction for their marriages. Owners wanted to be able to sell or move their "property" as they saw fit, and officially recognizing slave unions would have undercut that power. Legally, slaves could not marry or, consequently, divorce. Within slave communities, couples cemented their relationships through rituals and societal recognition. Those matches sometimes ended when couples grew estranged or when owners sold away one partner. Although African American churches and slave owners sometimes vetted these marital endings, most couples simply had their divorces (like their marriages) affirmed by their communities.

white women

White women relied more on the new divorce laws and benefited more from them. Wives sought to legally end their marriages more often than husbands, and they usually succeeded at a higher rate. The prevalence of female litigants originated in the colonial period. In colonial Virginia, for example, when courts allowed separate maintenance suits, nearly all benefited women. Men, who typically controlled marital assets, had little to gain and much to lose by appealing to courts. In colonial Massachusetts more women than men also sued for divorce in part because women sought protection from abusive husbands. Furthermore, far more men than women deserted their marriages, and this left abandoned wives in a precarious position. The doctrine of coverture, which defined the legal status of most white women in colonial America, placed wives wholly under the economic authority of their husbands. Unless she secured a divorce, any property or wages an abandoned wife acquired belonged to her estranged husband. In order to escape such economic exploitation—which never afflicted husbands—wives sought divorces. This pattern continued in the post-Revolutionary era. Pennsylvania's 1785 divorce code made desertion, adultery, impotence, bigamy, and cruelty acceptable grounds. Women benefited far more than men from the law, and their petitions exceeded husbands by almost a 2 to 1 ratio.

Mothers also gained more from shifting child custody assumptions in this era. During the colonial period, children were, in effect, defined as property of the head of household. When marriages ended, fathers could retain custody. By the early decades of the nineteenth century, authorities began to privilege the needs of children over paternal rights. As judges and legislators increasingly considered the relative merits of the mother and the father in determining custody, more women kept their children than ever before.

andrew and rachel jackson

The 1791 marriage of Andrew Jackson and Rachel Donelson Robards underscores the nature and complexity of divorce in this era. Rachel, a Tennessean, married Andrew Jackson under the incorrect assumption that she was legally divorced from her first husband, Lewis Robards. At the time of the Jackson marriage, Robards had gained authorization from the Virginia legislature only to sue for divorce in court. He finally secured a divorce in Kentucky in 1794—three years after the Jackson nuptials. When Jackson ran for president in 1828, his detractors charged Rachel Jackson with deserting her first husband and living in adultery and bigamy with Andrew Jackson. The couple's supporters insisted that Robards's cruelty destroyed his marriage and defended the Jacksons as victims of political persecution over an innocent legal misunderstanding.

The Jackson case highlights many of the central characteristics of early American divorces. Communities and legal authorities shared responsibility for judging the merits of divorces, which were decidedly public matters. Divorce required assessing blame, with one innocent and one guilty party. Although easier to secure after independence, divorces required a lot of time and remained controversial. (Andrew and Rachel Jackson lived together happily for over thirty-five years but could not escape scandal.) Geographic mobility and jurisdictional variations made extralegal desertion and bigamous remarriage much easier than legal divorce.

Ultimately, controversies and complications notwithstanding, Americans increasingly, though sometimes reluctantly, came to believe that in marriage individual rights outweighed societal ambitions. Although courts and legislatures tried to define and limit divorce and preserve social order, men and women sought relief from failed marriages and the right, with other, more agreeable mates, to pursue happiness.

bibliography

Basch, Norma. Framing American Divorce: From the Revolutionary Generation to the Victorians. Berkeley: University of California Press, 1999.

——. "Marriage, Morals, and Politics in the Election of 1828." Journal of American History 80 (1993): 890–918.

Buckley, Thomas E. The Great Catastrophe of My Life: Divorce in the Old Dominion. Chapel Hill: University of North Carolina Press, 2002.

Chused, Richard H. Private Acts in Public Places: A Social History of Divorce in the Formative Era of American Family Law. Philadelphia: University of Pennsylvania Press, 1994.

Cott, Nancy F. "Divorce and the Changing Status of Women in Eighteenth-Century Massachusetts." William and Mary Quarterly 33 (1976): 586–614.

——. Public Vows: A History of Marriage and the Nation. Cambridge, Mass.: Harvard University Press, 2000.

Hartog, Hendrik. Man and Wife in America: A History. Cambridge, Mass.: Harvard University Press, 2000.

Riley, Glenda. Divorce: An American Tradition. New York: Oxford University Press, 1991; Lincoln: University of Nebraska Press, 1997.

——. "Legislative Divorce in Virginia, 1803–1850." Journal of the Early Republic 11 (spring 1991): 51–67.

Smith, Merril D. Breaking the Bonds: Marital Discord in Pennsylvania, 1730–1830. New York: New York University Press, 1991.

Lorri Glover

Divorce and Desertion

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