Few people have heard of Mr. and Mrs. James Luxford[i]. They were a married couple who lived in Massachusetts. Mr. Luxford was also married to two other women which became the basis of the divorce which Mrs. Luxford brought and was granted in 1639 against Mr. Luxford. In the end, Mr. Luxford was ordered to give Mrs. Luxford all of his property and he was banished to England. Some would argue that divorce hasn’t really changed.
While divorce was rare in the colonies, there was a system in place to handle divorces. Initially, the colonies mirrored Britain in creating a tribunal within the legislative body to preside over divorce cases. Slowly, the colonies started establishing their own divorce statues and procedures.
The laws relating to divorce highlighted the cultural difference between the North and the South which was often attributed to a more religious South. While the North made divorce hard; the South made divorce almost impossible and in some states completely impossible. On one hand, Connecticut, considered one of the most liberal colonies, passed in 1667, the first divorce act (Act Related to the Bills of Divorce) which provided the grounds for dissolution. The grounds were: “adultery, or fraudulent contract, or willful desertion for three years with total neglect of duty; or in case of seven years absence...”. On the other hand, North Carolina, did not allow for divorces in the 18th century (with the passage of the 1949 Divorce Act, South Carolina became the last state to allow for divorce).
The end of the Civil War marked an important change in America’s tolerance for divorce. Abolitionism and liberalized divorce had become intertwined movements within the War. While Elizabeth Cady Stanton is known by many as an important figure in the fight against slavery, she was equally involved in changing divorce laws. As America tried to rebuild after the Civil War, it also greatly expanded to the West which took focus off of the “evils of divorce”. Eventually, Utah, Indiana, Rhode Island, and the Dakotas enacted liberal divorce laws. Subsequently, couples from states with more restrictive divorce laws began to travel to those states with less restrictive laws to obtain a divorce. Divorce travel became a tourist industry comprised of law practices, judges, hotels, and restaurants all to accommodate divorcing couples.
In response, Congress ordered its’ first (of many) study in 1887 to determine the number of divorces that were being granted. They found that the number of divorces had been drastically increasing. Per 100,000 people, there were 81 divorces granted in 1870; 107 in 1880; 148 in 1890; and 200 in 1900. At the same time, cultural norms were relaxing and feminist movements were taking root. By 1912, New Jersey opened the first family court followed quickly by Ohio in 1914. The early family law courts often included juvenile justice and probate cases as well as divorce and custody cases. It was not until the 1950’s and 1960’s that America started seeing the more modern versions of family courts.
In 1969, divorce law took its sharpest turn when then Governor of California, Ronald Regan, signed this country’s first no-fault divorce law. Previously, states required that the petitioning party provide a reason for the divorce. For example, a party would have to prove, to varying degrees that the other spouse was engaging in adultery or cruelty or some other act. No fault divorce meant that the petitioning party simply had to assert that they no longer wanted to be married. Today, every state but New York has some variation of no-fault divorce.
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[i] Common law dictated that a married woman’s legal identity merged with her husband’s. See William Blackstone Commentaries on English Law (1765–1769): By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything.