Divorce is legal? When did that happen?

Thanks to one of my readers, I just learned something fascinating about American history. You know how if something is legal today we assume it has always been that way? Well divorce is relatively newly legal in our country! Especially no-fault divorce, meaning either party could walk away for any reason. The modern concept of a divorce varies by culture and religion, but early forms of divorce were almost always only if the husband wanted it. I remember when I lived in Taiwan in the early 1980s, only men could choose divorce and then only he had all the power to decide whether to keep the kids or not. He usually only kept them if they were male.

The first recorded divorce in the American colonies was that of Anne Clarke and her husband Denis Clarke of the Massachusetts Bay Colony on January 5, 1643. The divorce was granted by the Quarter Court of Boston, MA on the grounds that Denis Clarke abandoned his wife to be with another woman.

If your marriage broke up in the 1750s, you had to obtain a private Act of Parliament—essentially, an exception to Britain’s draconian divorce law—to formally divorce. The process was expensive and time-consuming, so wife-selling arose as a form of faux divorce.

Until the 1857 Matrimonial Causes Act, it was essentially impossible to obtain a divorce in the U.S., no matter how bad the marriage or how cruel one’s husband. A couple could only be divorced by the passage of a private act through Parliament, a remedy available only to the very wealthy.

If you wanted a divorce in the early 1900s, you had to prove your significant other had committed adultery, abused, or abandoned you. By 1916, the U.S. led the world in number of divorces and in 1942, the U.S. Supreme Court ruled in Williams v. North Carolina that other states had to recognize divorces, under the “full faith and credit” clause of the U.S. Constitution. It wasn’t even until the late 1960s that Americans were allowed no-fault divorces.

If there was divorce in your own family history, like mine, the family was usually quite secretive about it. And as we all know, secrecy usually equals shame in our culture. In my family, who were basically Southern Baptist farmers in the Kansas City area in the early 1900s, I can think of three family secrets that my Mom had to really dig for when she decided to do our full genealogical history: divorce, marrying someone of the Jewish faith and severe mental illness.

My own 2001 Colorado divorce was quite quick and painless. We never had to show up in court because the filing was uncontested, meaning we were not fighting over assets and we had no children. We just filled out some forms, paid $99 and we were done. No muss no fuss, except for a few hurt feelings and the various biases and criticisms I experienced from others afterwards. One great side effect for me, my TMJ went away never to return!

Did you know that more than one quarter of Americans getting divorced in the United States today are over age 50, and most of those divorces happen after 20 years of marriage? Pew Research found that the rate of divorce among those over 50 nearly doubled from 1990 to 2015, and the attitudes of those Americans have shifted to feeling much more supportive of divorce.

Here’s my own conclusion a few years after my own divorce:

“Perhaps it’s mainly women who get stigmatized by divorce: “What’s the matter—couldn’t keep your man?” The assumption being that any man is better than no man at all. Come on—we can do better than this, people! Few marriages are matches made in heaven, and sometimes they truly need to end. Mismatched is no match at all. It’s only fair that after a mistake, each of us can try again to find happiness before it’s too late.”

One thought on “Divorce is legal? When did that happen?

  1. My home state of New York, thought of as liberal, has actually been one of the more conservative states when it comes to divorce. We didn’t become a no fault divorce state until (drum roll) 2010. My father, who divorced sometime in either the late 40’s or around 1950 and married my mother in 1951, had to (he told me this many years ago, and I believe it) mock up an adultery situation with a hired third party taking staged compromising pictures of him to get a civil divorce. I never even was told if this was before he met my mother or not. I shudder just thinking of going through all this. Oh, those family secrets. We all have them, don’t we.

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