DIVORCE
Despite their belief that the family was the basis of political and ecclesiastical authority, sev- enteenth-century Puritans held that marriage was a civil contract that could, under certain circumstances, be broken. Divorce was permissible on several grounds, including adultery, long absence, and cruelty, but such grants were rare and reflected the gender hierarchy that pervaded all of social life. In principle, both men and women could receive divorces on the ground of adultery, but in keeping with the sexual double standard, men were the chief beneficiaries of this law. In Massachusetts between 1692 and 1786, half of all male petitioners (50 of 101) named adultery as their sole grievance and 70 percent received divorces; no woman petitioned for divorce solely on the ground of adultery until 1774, and only 6 did so in the next twelve years. In the South, only separations were legal, a reality that left colonial women yoked to their more powerful husbands. On the other hand, although only a few hundred colonial men and women actually obtained divorces, thousands simply deserted their spouses, suggesting more marital conflict than the low divorce rate for the period suggests.
But divorce laws and procedures gradually changed in ways that benefited women. In the revolutionary era, wives found courts more receptive to their complaints about adultery, and in the early nineteenth century, state legislatures expanded the grounds of divorce, including most significantly, intemperance and cruelty. The change fueled the expansion of female divorce petitioners over the course of the century: by 1900 about two-thirds of all divorces went to women, and by 1929, 44 percent of divorces granted to women were on the ground of cruelty. Nor was the definition of cruelty static: during the nineteenth century, it came to embrace the idea of "mental cruelty" as a sufficient reason for divorce. Again, women were the chief beneficiaries of the change. But although thousands of women received divorces on the grounds of cruelty or desertion (the most common late-nineteenth-century complaints), they seldom received child support or alimony. Women did, however, gain increasing access to child custody over the course of the nineteenth century as new cultural emphases on the importance of motherhood and childhood predisposed courts to award children of "tender years" to their mothers. For some women, then, divorce brought freedom and independence; for others, merely new obligations, difficulties, and dependencies.
Divorce finally became a major social issue in the late nineteenth and early twentieth centuries because of a huge expansion in the divorce rate. In 1880 only one of every twenty-one marriages ended in divorce; in 1916 that figure was one of every nine. The surging divorce rate prompted a protracted debate over the cultural meaning of divorce. Feminists and liberals could see no reason stringent divorce laws should stand in the way of freedom and happiness, but a diverse group of conservatives saw in the legal dissolution of families a prelude to social disorder and a sign of female selfishness. While the former hoped to widen access to divorce, the latter called for tougher divorce laws and a dose of traditional morality to reduce the flow through the divorce courts.
Although conservatives failed to enact a uniform divorce code, they did manage to abolish omnibus clauses, restrict the rights of remarriage, and impose stricter residency requirements on divorce seekers. Nevertheless, these conservative measures did nothing to stem the tide of women and men seeking to end their marriages. Although there were short-term fluctuations, the divorce rate rose slowly in the 1920s, dropped off in the early years of the depression, and then rose steadily in the late 1930s before soaring during World War II. Destroying conservative efforts to reduce the divorce rate were rising romantic and sexual expectations within marriages, heightened tensions over finances and the use of leisure time, growing female opportunities for economic self-support, increasingly expansive definitions of cruelty, the adoption in some states of "irreconcilable differences" as a ground for divorce, and a marked shift toward consensual divorce.
Explanations and remedies for divorce proliferated. Conservatives reiterated their emphasis on moral breakdown and female selfishness; feminists, the need for women to escape the heavy hand of patriarchy; and progressives, the impact of wider social change on family stability. As early as 1910 and continuing until the 1940s, many family experts rejected these explanations and put forth a psychological alternative. Divorce seekers found themselves described as neurotic, abnormal, and infantile. Among professionals, divorce was widely viewed as stemming from immaturity and psychological instability. Rather than seeking changes that might reduce marital stress or simply accepting the inevitability of divorce, reformers instead emphasized curing the neuroses that lay behind divorce. Not surprisingly, the agent of cure—a patriarchal legal system acting as a therapeutic agent—was ill suited for the task. Family courts, social work investigations, reconciliation sessions, and counseling services often devolved into a form of therapeutic intervention that satisfied neither the interests of the couple nor those of the state.
The divorce rate reached an all-time high in 1946 and then declined before leveling off in the 1950s and early 1960s. But beginning in the mid-1960s, it again began to rise dramatically, fueled by ever-higher marital expectations, a vast expansion of wives moving into the work force, the rebirth of feminism, and the adoption of no-fault divorce (that is, divorce granted without the need to establish wrongdoing by either party) in almost every state. These factors all made marital stability more problematic.
The last factor, although hailed as a progressive step that would end the fraud, collusion, and acrimony that accompanied the adversarial system of divorce, has had disastrous consequences for women and children. Presupposing an equality between husbands and wives that has no basis in reality, no-fault divorce has left women and their dependents in an unenviable position. Statistically, men's standard of living rises sharply in the first years following divorce, whereas women's and children's plummets, a situation brought about by men "cashing out" on home sales and by inadequate alimony awards and child support payments. No-fault's seeming equity does not take into account the fact that women find it difficult to compete in a job market characterized by gender segregation and persistent discrimination; moreover, many have been out of the job market for years and are often poorly equipped to earn their own living. Women with small children are especially handicapped. By contrast, divorcing husbands take with them the assets of education, degrees, professional certifications, their good business name, and preference in a segmented labor market. Freed from direct family responsibilities, divorcing husbands can often concentrate on improving their financial situation.
America's divorce rate signifies less a disillusionment with the institution of marriage—the high remarriage rate among the divorced contradicts such a conclusion—and more the consequences of loading marriage with high expectations. Over the last two centuries, American men and women have come to expect material, psychological, emotional, and sexual satisfaction from their marriages. When these expectations are not met, divorce is a logical recourse in a society dedicated to individual happiness. Divorce, then, is likely to remain a prominent feature of American family life. The task before lawmakers and courts is to accept this fact and to make spousal and child support awards that will ensure some measure of parity in the living standards of divorced men and women.
Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (1988); Lenore J. Weitzman, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985).
Robert L. Griswold
See also Family; Marriage.
