Chapter 4a: Divorce/Marital Status
1. Overview of U.S. Law
Divorce is the legal mechanism through which parties change their legal status from married
to single. They are ‘free of the bonds of matrimony’ and free of marriage’s rights and obligations,
except as specifically provided in the decree of divorce. Property rights and ongoing support
obligations are separate matters, treated below. Because divorce is viewed as a question of status,
any court having in personam jurisdiction over the plaintiff can grant a decree of divorce if the
plaintiff is able to meet that court’s jurisdictional requirements.
Historically, divorce was unknown in the Western world when marriage served a larger
societal purpose. When marriage was a means of forming alliances among families, for example,
divorce was not an option. Once companionate marriage became the norm; that is, when people
began to marry for love, divorce became easier because there were no overarching societal interests
at stake.
In the American colonies, divorce was extremely rare but there were regional differences.
In the South, for example, absolute divorce was unknown. Bed and board divorce, which allowed
the parties to live apart but not to remarry, was very rare. Parties could only get divorced by private
divorce bills; that is, laws passed on a case-by-case basis by the state legislature. The demand for
such bills soon made them impractical. By 1800, however, every New England state, along with New
York, New Jersey and Tennessee, had enacted statutory divorce laws.
Divorce has always been controversial. Some considered it a “symptom of moral dry rot.”
But as Lawrence Stone observed, it “grew out of the needs of middle class people who just wanted
to stabilize and legitimize relationships [and] to settle doubts about ownership of family property.”
National laws on divorce reflected the lack of national consensus. In general, divorce at will
was not allowed. Rather, different states specified different grounds for divorce. South Carolina had
no divorce. New York allowed divorce only for adultery. Most states had broader lists, which
allowed divorce for “fault” such as desertion or habitual drunkenness. In some states, the innocent
party could remarry, but the guilty party could not. The law as it was written had little relation to the
law as it was practiced.
Divorce laws throughout the United States assumed adversary proceedings. One party was
required to show fault. This was criticized as an unrealistic description of the marital relationship.
All of the grounds for divorce occurred in some enduring marriages; those that did break up did so
because the parties were unable or uninterested in continuing the marriage. In addition, assigning
fault was viewed as arbitrary and artificial by some because they recognized that spouses can grow
apart without either being at fault. Even if one party was at fault, critics continued, is marriage a
punishment?
There were other difficulties with traditional divorce. Under the doctrine of recrimination, for
example, if both parties were guilty, neither was entitled to a divorce. This created a hostile
atmosphere in the divorce courts and made cases difficult to settle. The law’s failure to provide at-
will divorce also encouraged collusion, in which the parties would agree to manufacture the
necessary ground. This created ethical problems for attorneys and clients. In practice, divorce was
relatively easy to obtain, although in a formal legal sense it was not.
The movement for reform started in California. A committee drawn from the bar, the
judiciary, social workers, the medical community and academia recommended that divorce should
be available on the grounds of incompatibility. At the same time, the committee recommended that
a system of family courts, supported by a professional staff of counselors, be put in place to cushion
the impact of the new law. In the face of opposition by the bar and tax payers, the family
court/counseling staff part of the recommendation was dropped. The result was no-fault divorce;
no guilt needed to be established in court, and no acts of misconduct were to be brought before the
court unless necessary to show irreconcilable differences or if such acts were relevant to the issue
of child custody. Now approximately one-third of the states have pure no-fault laws while the rest
have added no-fault, or incompatibility, grounds to their preexisting law. Washington state is the
only state that officially allows unilateral divorce, but in practice it is widespread.
Notes
1. It may be argued that local differences reflect local norms. This argument was more
persuasive when we were a less mobile society. See, e.g., Carl Scheider, The Next Step: Definition,
Generalization and Theory in American Family Law, 18 U. Mich. J. L. Reform 1039 (1985); Barbara
Bennett Woodhouse, Towards a Revitalization of Family Law, 69 Tex. L. Rev. 245 (1990)
(reviewing Mary Ann Glendon, The Transformation of Family Law (1989)).
2. In addition to the well-known Catholic prohibition against remarriage following divorce,
Orthodox Jews, Muslims and fundamentalist Protestants often impose barriers to divorce. Orthodox
Jews, for example, require the wife to obtain a get from the husband. See generally Frances Raday,
Israel-The Incorporation of Religious Patriarchy in a Modern State in GENDER BIAS AND FAMILY
LAW: COMPARATIVE PERSPECTIVES 209, 210 (Barbara Stark ed. 1992) (describing Jewish law, the
halacha, under which divorce is the husband’s prerogative, and Shara’ite Courts which apply
Moslem Law, including the husband’s right to unilateral divorce and to marry up to four wives);
Azizah Y. al-Hibri, Marriage Laws in Moslem Countries, in id. at 227, 228-29 (explaining how
interpretation, along with the judiciary, “became the exclusive domaine of men” in Islamic law).
3. The state has a well-established interest in marriage and divorce. As the Supreme Court
famously held in Maynard v. Hill:
Marriage, as creating the most important relation in life, as having more to do with the
morals and civilization of a people than any other institution, has always been subject
to the control of the legislature. That body prescribes the age at which parties may
contract to marry, the procedure or form essential to constitute marriage, the duties
and obligations it creates, its effects upon the property rights of both, present and
prospective, and the acts which may constitute grounds for its dissolution.
125 U.S. 190, 205 (1894).
Divorce is generally subject to final judicial approval. This reflects the states’ well-accepted interest
in protecting vulnerable parties. For a critical analysis of the states’ real and professed interests in
marriage, see Brian H. Bix, State of the Union: The States’ Interest in the Marital Status of Their
Citizens, 55 U. Miami L. Rev. 1 (2000).