April 19, 2024

politics of law

Politics and Law

Weird Divorce Laws

10 min read

Throughout the history of divorce and the laws that control it in the United States, there have been many opportunities for surprising, obscure, or confusing divorce laws. One reason is that from almost the beginning, divorce law has varied enormously by region.

The first divorce on record in America was granted in 1639 in the Massachusetts Bay Colony because a man named James Luxford had married two wives. Luxford’s punishment was to relinquish his possessions to his second wife as alimony, and he was put in the stocks, fined, and banished.

Since then, the cultural significance, laws, and contexts of marriage have changed considerably. Whether it’s the relatively recent recognition of same-sex marriage or the evolving place of women in society, these changes have been sizable and numerous, and they have raised issues concerning the application of the law. 

The realities of splitting up have also changed. Ever since national data have been collected on divorce the rates have risen, with events like the Industrial Revolution and the “divorce revolution” of the 1970s and 1980s, discussed below, swelling divorce statistics.

Key Takeaways

  • Divorce has changed considerably since the first recorded examples on the American continent.
  • Divorce laws, which accrue, are written by state legislatures that are forward-looking in the laws they write.
  • Backward-looking mechanisms for getting rid of unuseful laws can help make sure problematic laws don’t cause mischief, according to Laura Tharney of the New Jersey Law Revision Commission.
  • There are surprising and obscure laws still on the books in states around the country.

A Brief History of Divorce

In the Colonies

Western Kentucky University economists Claudia Strow and Brian Strow attribute the rising divorce rates in the country to the availability of opportunities for women outside of the home, laws that are more permissive of divorce, and the shrinking stigma around divorce in the country.

The colonies were always more comfortable with divorce than places like England, where divorce at one time required an act of Parliament.

In the colonies, divorce was less of a nonstarter, the Strows write in “A History of Divorce and Remarriage in the United States.” This was in part because some of the colonists tended to view marriage as a civil contract rather than a sacred oath.

Within the colonies, the different religious ideologies impacted specific laws concerning divorce. It was always geographically divergent, however, with the New England colonies tending to take a tolerant view of divorce, the southern colonies taking a more rigid view, and the middle colonies taking a more mixed view.

This early period is rife with laws that would now seem problematic or otherwise weird. The Massachusetts Bay Colony, for instance—which allowed divorce for desertion or adultery since 1629—did not allow adultery as grounds for a wife to divorce a husband, only the other way around.

The 18th and 19th Centuries

With American independence, divorce petitions increased and the matter tended to be handed over to state courts rather than to legislative bodies, which led to a broadening of the grounds for divorce, according to the Strows.

At the end of the 18th century and the beginning of the 19th, while divorce was still rare, it was becoming more frequent, encouraged by women’s evolving role in society. During this time, middle-class women, in particular, bore fewer children and focused more attention on shaping the moral values of the children they did have. The Industrial Revolution altered the family further, making divorce still more common.

Surveying the evolution of divorce laws in the country, University of Pennsylvania sociologist Frank Furstenberg, Jr., reflected that the participants in debates around divorce in the 19th century, when divorce was still uncommon, would have a hard time imagining how central divorce has become for the institution of American marriage.

One notable 20th century shift that changed the nature and context of divorce and divorce settlements was that family law, historically a matter of state law in America, became somewhat federalized. 

The 20th and 21st Centuries

A report of divorce statistics compiled by the U.S. Centers for Disease Control and Prevention (CDC) from 1867, the first year for which national statistics exist, until 1967 reveal that the net change in marriage rates was “almost nil” over that 100-year period, although the agency says that reporting for some of the data was unusually poor.

The divorce rate, on the other hand, climbed consistently for the 80-year period from 1867-1946, fueled in the early 20th century especially by two world wars and momentarily slowed down by the Great Depression, according to the CDC report. After 1946, the divorce rate wouldn’t grow again until the 1960s.

However, the rate really took off in the 1970s and 1980s with a big shift in legal grounds for divorce, a period known as the “divorce revolution,” when no-fault divorces became common in the U.S. In law, a “no-fault” divorce means that a partner can dissolve a marriage without having to prove their spouse did something wrong.

Governor Ronald Reagan, who himself eventually became the first divorced person to be elected president, had signed the first “no-fault” divorce law in the nation with California’s 1969 Family Law Act, and since then every state has enacted similar rules. Reportedly, Reagan later said that this was the biggest political mistake of his life.

In more recent years, divorce rates seem to have plateaued and then fallen off. The U.S. Census Bureau reported that in 2019, the divorce rate was 7.6 per 1,000 women over the age of 15, down from 9.7 in 2009. It also noted that the rates vary widely by state. However, it’s worth mentioning that scholars say the Census Bureau data may misrepresent true divorce rates in the country.

In 2019, Arkansas had the highest divorce rate and the District of Columbia and Maine had the lowest.

Why Outdated Laws Still Exist

Today, divorce law is primarily determined at the state level in the U.S. The laws for divorce will vary by place and each state has its own history of development for its laws.

Weird, offensive, or ridiculous laws are sometimes exaggerated, and the lists that bring attention to them are prone to spreading hoaxes, according to students of the law. Law student Kelly Owens, writing for Marquette University Law School, for instance, compared those lists to a society-wide game of telephone.

However, American legal systems do contain a number of surprising laws, for which the rationale has been forgotten or may no longer be relevant. State statutory law grows every year, and new contexts for law also arise, such as when the U.S. Supreme Court struck down bans on same-sex marriage.

The places that pass laws, state legislatures, are forward-looking, and without a backward-looking mechanism for getting rid of unuseful laws, they simply accrue, says Laura Tharney of the New Jersey Law Revision Commission, a body responsible for finding and revising outdated laws in the state. Some parts of New Jersey’s property laws date back to the 1700s, Tharney says.

Jeralyn Lawrence, a New Jersey divorce attorney, described in an interview how a spillover law that allows an exemption for when the state has jurisdiction over a divorce complaint has proved useful to lawyers in New Jersey. Normally, she says, filing a divorce complaint requires that someone live in the state for a year. However, the state has an exception for only one cause: adultery. For adultery, living in the state for just one day is enough to file, which greatly benefited at least one of her clients, whose partner was having an affair. “The genesis of it was when fault in New Jersey really mattered,” Lawrence says.

Other residual laws are less useful.

Married Women’s Property Acts, for example, were enacted in the 19th century in all of the states as a way to give women greater access to property rights, contracts, and the right to sue in order to lessen discrimination against them. Courts today no longer accept the discrimination against women endemic to that time—for example, marriage no longer gives a husband control over money and other property a wife brings into the marriage. “As a result of subsequent developments in the law and society, the Acts became a demeaning relic, rather than a necessary solution,” Tharney says. The New Jersey Constitution, for example, now guarantees equality. Since these once-useful laws no longer serve a purpose and are a reminder of former discrimination, the law review commission recommended their repeal in New Jersey.

Laws may need revising because they’re confusing, they contain obsolete references, or they solve a problem that no longer exists, Tharney says, adding that a law may also be inconsistent with other laws or can rely on terms that are no longer understood. Laws can also fall out of step with social or technological developments.

A 2014 New Jersey Law Revision Commission report recommended striking out “physical force” from the state’s statutes on sexual offenses to better reflect how those cases are handled in law. Force, which the commission report calls “ambiguous,” has been replaced by an understanding based on whether a reasonable person would have understood that there was “freely and affirmatively” given consent. The commission has also worked to update language related to mental and physical ability, removing demeaning terminology related to sexual offenses against people with intellectual or developmental disabilities.

Several recommendations that haven’t yet been enacted include removing references to “workhouses” where people may become imprisoned because of the term’s connections to slavery during the colonial era, and also updating New Jersey’s Parentage Act, which, she says, “has not kept pace with changes in society or technology with regard to questions of family relationships and how they are created.”

Uncommon Divorce Laws Still on the Books

  • In Alabama, a wife may be kept from using the initials or the name of her former husband by the circuit court of the county where the divorced wife lives.
  • In Delaware, a marriage may be annulled if one or both parties got married on a dare or jest.
  • In Minnesota, the state has a summary dissolution option, a less expensive and faster form of divorce, that is available so long as the couple has little debt, owns no property, and has less than $25,000 in marital assets, among other requirements.
  • In Mississippi, the list of reasons for divorce includes “natural impotency, insanity or idiocy,” as well as the pregnancy of the wife by another person, according to the state bar. (“Insanity,” for example, can now only be used as a defense against certain criminal charges, and the rules of criminal procedure don’t apply in divorce.) Those items rank alongside relentless cruelty, bigamy, incest, and habitual drunkenness or drug use as grounds for divorce.
  • South Dakota law has a provision allowing for a divorce complaint summons to be served by publishing it in the newspaper if the spouse proves hard to locate, according to information from the state bar association.
  • In Texas, couples can’t finalize a divorce while pregnant if the husband is the genetic father, meaning that they must wait until the child is born when the judge can put custody and child support into the divorce decree or they can prove that the husband isn’t the genetic father, according to Texas Law Help, a nonprofit legal services center.
  • Other states, including Arizona, also will not finalize a divorce during pregnancy.

Can a Couple Get a Divorce If One Spouse Is Pregnant?

Most states allow a couple to finalize a divorce while one spouse is pregnant. Others—including Florida, Arkansas, Texas, Arizona, and Missour—either require you to wait until the birth of the child to file or, more often, finalize a divorce that’s already underway.

What Is a No-Fault Divorce?

A “no-fault” divorce means that either spouse can dissolve a marriage without having to prove that the other spouse did something wrong. All states in the U.S. offer no-fault divorce.

Fault divorces—in which one spouse has to prove wrongdoing on the part of the other spouse—are an available option in many states. Only 17 states (and Washington, D.C.) are true “no-fault” states, meaning you can only file for divorce on “no-fault” grounds.

What Are the Most Common Grounds for Divorce?

Laws vary from state to state but in addition to “no-fault” divorce, in which no reason for the divorce has to be given, the most common legally acceptable “at fault” grounds for divorce are:

  • Adultery or cheating
  • Bigamy (being married to two people at the same time)
  • Desertion
  • Mental incapacity at the time of the marriage
  • Impotence at the time of the marriage

The Bottom Line

Weird, offensive, and surprising laws be left on the books in states across the country. While they can sometimes prove useful, they also can have a negative effect, especially if they’re confusing or densely written, or if they fall out of step with developments in society.

Untangling and updating those laws, legal experts say, is vital. “The laws apply to us all, whether we are aware of them or not, and whether we understand them or not. If someone—with or without legal training—tries to find out what the law is on a particular subject, it should be accessible, not a trap for the unwary,” the New Jersey Law Revision Commission’s Laura Tharney says.

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