Divorce Legislation and Family Instability

American Academy of Political and Social Science
Divorce Legislation and Family Instability

Author(s): Mabel A. Elliott
Source: The Annals of the American Academy of Political and Social Science, Vol. 272,
Toward Family Stability (Nov., 1950), pp. 134-147
Published by: Sage Publications, Inc. in association with the American Academy of
Political and Social Science
Stable URL: https://www.jstor.org/stable/1026837
Accessed: 13-11-2019 07:54 UTC
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
American Academy of Political and Social Science, Sage Publications, Inc. are
collaborating with JSTOR to digitize, preserve and extend access to The Annals of the
American Academy of Political and Social Science
This content downloaded from 49.150.110.15 on Wed, 13 Nov 2019 07:54:17 UTC
All use subject to https://about.jstor.org/terms
Divorce Legislation and Family Instability
By MABEL A. ELLIOTT
MODERN divorce legislation re-

CURRENT TRENDS IN DIVORCE
flects (as does all social legisla-
LEGISLATION
tion) the opinions entertained by the
legislators. Divorce legislation, Despite
it fol-allegations to the contrary,
most
lows, incorporates the provisions divorce provisions (even the more
which
liberal) are relatively conservative and
legislators believe should be sufficient
grounds for dissolving the estate
for theofmost part embody grounds which
matrimony. These legislators,are asgenerally
Karl agreed to be evidences of
N. Llewellyn has so convincinglyserious
stated,misconduct on the part of the
defendant to a divorce suit. Although
do not represent their whole constitu-
ency.l They merely representthere upper
are many superficial variations in
middle class attitudes which are the the divorce codes in different states, four
backbone of the group's moral stand- general tendencies are apparent in pres-
ent divorce legislation. These may be
ards. Our divorce provisions in a sense
thus represent in a negative way classified
the as: (1) the marked uniformity
in the admissible grounds for divorce
standards of conduct required of a mate
in America. throughout the United States already
As far as marriage ideals are con- referred to; (2) the tendency to com-
cerned, we may believe (if we may ac- mercialize divorce in certain parts of
cept the Kinsey Report's conclusions) the country; (3) the increase in so-
that legislators have somewhat higher called leniency as indicated in the ex-
standards of sex and marital conduct tensive number of grounds which have
than the rank and file of the popula- been adopted as just cause for divorce;
tion. At least a large part of legislatorsand (4) the concurrent tendency to re-
are college trained, for lawyers bulk strict the conditions under which di-
large in the members of state legisla- vorce and alimony are granted.
tures; there are also many farmers who
GROUNDS FOR DIVORCE
have (along with clergymen) a con-
servative record in the divorce court. Despite the right of each state to en-
Thus the majority of legislators one act whatever divorce laws it chooses,
would judge to be conservative, rela- the grounds for divorce are much the
tively decent men who believe that the same in widely separated states. That
institution of marriage must be pre- is, cruelty, desertion, and nonsupport
served. They also believe in permanent are generally accepted grounds for di-
monogamy because of the social and re- vorce, and there is an increasing tend-
ligious ideals which they as a class tend ency to make impotency (for which
to represent. marriages were often annulled at com-
1Karl N. Llewellyn, "Behind the Divorce
mon law, since inability to have sex re-
Law," Columbia Law Review, 32: 1281-1308, lations disavows an-expected-basis for
Dec. 1932. contracting marriage), habitual drunk-
134
DIVORCE LEGISLATION AND FAMILY INSTABILITY 135
enness, and conviction and imprison- permitted in all states but Alabama,
ment for felony just causes for break- Maryland, New York, and North Caro-
ing up a marriage. lina. (Virginia provides divorce for in-
Legal definitions of grounds enter into tense severity, which is virtually the
the interpretation of the law and the same as cruelty.) What constitutes
decisions as to whether the particular cruelty is differently defined, however,
alleged grounds are valid. All states and some states provide an additional
admit adultery as ground for divorce. charge of threat to physical or mental
Adultery, however, may be held to have health. Initially, most cruelty charges
been committed where an illegal divorce implied physical violence; but today,
has been obtained and the party subse- cruelty usually subsumes any form of
quently marries. In another case, adul- mental suffering as well.
tery may be denied where one spouse One of the most general additions to
marries when the other is mistakenly the divorce codes in the various states
thought to be dead. In case of deser- is conviction and sentence for commit-
tion, different states vary in requiring ting a felony. All states but Florida,
from one to five years of absence of Maine, Maryland, New York, North
spouse (and actual cessation of sex re- Carolina, and South Carolina now per-
lationships) in permitting divorce on mit this charge.3
the ground of desertion. Separations
required by military duty or occasioned Liberalization of divorce codes
by illness are not regarded as desertion. Certain increases in leniency of di-
If a departed spouse offers to return vorce legislation are indicated in the ex-
home before the legal length of time tension of the permitted grounds for di-
required for the desertion charge, de- vorce. There has been, for example, a
sertion cannot be suitably alleged. gradual admission of "voluntary sepa-
All states but New York and North ration" as a ground for divorce through
Carolina admit desertion as a groundthe years. It was not until 1949, how-
for divorce. New York, however, per-ever, that Nevada added separation for
mits a severance of marriage if a spousethree consecutive years to the legal
deserts and is not heard from for a pe-grounds in that state; in the same year
riod of five years, by declaring the de- Alabama reduced the period of deser-
parted spouse dead. When bona fidetion as a ground to one year. In these
desertion occurs, the wife is often left
cases there is no attempt to establish
without means of support, hence the guilt or innocence of the deserter.
dual charge of "desertion and nonsup- Many states have made conviction for
port" is frequently made. If the hus- felony a ground for divorce, and in 1949
band is unable to support his wife,Virginia added provision for divorce in
divorce may be denied despite thecase the spouse is a fugitive from jus-
validity of the nonsupport ground.2tice and absent two years. The most
Habitual drunkenness implies truly ha-dramatic divorce legislation, however,
bitual addiction to drink, and does not
is in South Carolina, where the state for
admit the evidence of an occasional the first time authorized absolute di-
spree as valid. vorce and adopted four grounds-adul-
Cruelty as a ground for divorce is
3 Richard V. Mackay, Law of Marriage and
2 Sarah T. Knox, The Family and the Law
Divorce (No. 1 of Legal Almanac Series, New
(Chapel Hill: University of North Carolina
York: Oceana Publications, 1947), pp. 42-48;
Press, 1941), p. 41. and 1949 Supplement thereto, pp. 6-8.
136 THE ANNALS OF THE AMERICAN ACADEMY
tery, desertion, habitual drunkenness, quently he advertised the opportunities

and willful neglect for one year. Thefor securing a respectable divorce after
District of Columbia had previously en- a short residence in Nevada. Actually
acted legislation permitting divorce for the divorce code of Nevada as adopted
desertion for a period of two years, forin 1861 was not especially lenient, but
conviction of felony for a two-year sen-was a far cry from the rigid restrictions
tence, and for living apart for five years,of the New York divorce code. In-
in addition to adultery which had beenitially the Nevada residence requiremen
the only ground up to that time. was six months. Recoiling against t
influx of migratory divorcees, Neva
RESTRICTIVE TENDENCIES
enacted a statute in 1913 requiring
Despite the relative ease with whichyear's residence, but the six month
divorce can be obtained, a restrictiveprovision was restored two years later
trend can also be observed. Restrictive Since that time, residence requirement
practices are specifically incorporated in
have been markedly reduced in Nevada
and a profitable business in out-of-stat
the divorce legislation in certain states.
Approximately one-third of the states
divorces has developed.
now have the interlocutory decree. Such Other states, anxious to share in th
lucrative business which wealthy di
decrees, as Vernier points out, (1) dis-
courage ill-advised and hasty divorces,
vorce clients bring to hotels, shops, an
(2) promote reconciliation, (3) give the
theaters, as well as to divorce lawyer
judge a chance to discover fraud or col-have enacted similar provisions. T
lusion, and (4) prevent hasty remar-day only four states-Nevada, Florid
Idaho, and Arkansas-have short resi
riages which may result in subsequent
divorce.4 California, which grants the
dence requirements. Nevada and Idah
highest actual number of divorces ofrequire only six weeks residence before
any state, has the interlocutory decree,
instituting proceedings, while Arkansa
which does not become final until onerequires sixty days and Florida ninet
year has elapsed. In Kansas, divorcesdays. Arkansas hoped to profit from
become final after six months. Pro- extra patronage of her famous Ho
visions for a waiting period beforeSprings.
the The major migratory divorc
divorce becomes final range from patronage
one today is, however, in Ren
month to a year.5 and Florida, with the semitropical cl
mate of Florida gaining an edge on th
COMMERCIALIZATION OF DIVORCE
western divorce capital. During the fir
The urge to commercialize divorce in half of 1950 there were 333 more di-
America seems to have stemmed from vorces than marriages in Dade County,
activities of a New York lawyer whoFlorida, where Miami is located.7
recognized the possibilities of exploiting The urge to commercialize divorce has
the relatively lenient grounds for di- even extended to our dependencies. In
vorce in Nevada on behalf of New York 1944 the Virgin Islands adopted- a six
clients who were either too embarrassed weeks residence requirement for di-
or too honest to press charges of adul-
tery against an estranged mate. Conse- 6 Frank M. Ingraham and G. A. Ballard,
"The Business of Migratory Divorce in Ne-
4 Chester G. Vernier, American Family Laws vada," Law and Contemporary Problems, Vol.
(Stanford: Stanford University Press, 1931- II (June 1935), pp. 348-59.
1938), Vol. II, p. 152. 7New York Times, July 4, 1950, p. 19,
5 Ibid. col. 7.
vorce.8 Since these islands belong to Apparently the United States Su-
the United States, divorce decrees are preme Court has not established any
accepted as much as legal divorce on the ruling on the legality of enforcing ali-
mainland. Since relatively few news mony awards in states where the per-
reporters scan the Virgin Islands di- sons reside (rather than where divorce
vorce register, many persons who wish is granted), but the Florida Supreme
to shun the publicity encountered in se- Court ruled on June 23, 1950 that ali-
curing a divorce elsewhere are said to mony awards made in other states were
slip quietly to the islands and secure a enforceable in Florida under the con-
relatively "private" divorce. A bill with tempt-of-court law. On the other hand,
similar provisions was introduced in the the New Jersey Supreme Court ruled
Puerto Rican legislature in 1950, but on June 19, 1950 that a Florida divorce
did not pass. That a bill should even decree and alimony were invalid in case
be introduced in a country dominated of a New Jersey woman who had lived
by Roman Catholic tradition is, how- in Florida barely long enough to secure
ever, a significant straw in the wind. a decree which in no case could have
It is these short residence requirements been secured in New Jersey. In fact,
that form the basis for most of the the court maintained that such divorces
charges of lax divorce provisions in thewere a national scandal.9
United States.
TRENDS IN DIVORCE LEGISLATION

LEGAL RULINGS ON MIGRATORY ABROAD
DIVORCE
The trend toward more lenient di-
Many jurists where relatively con-
vorce laws has been world-wide. The
servative divorce laws are in force have Soviet Union presumably went furthest
denounced the short term residence as in initially granting a divorce for the
making divorces in question illegal. All asking, but this was a temporary meas-
in all, the short residence requirements ure, and one of the excesses to be at-
in four states have led to a variety of tributed to the revolution. With the
confusing legal rulings. In general, the development of a stable government and
superior courts in more conservative a demand for greater family stability,
states have frowned seriously on the easy divorce was restricted in 1936.
migratory divorces which local citizens Today, in fact, there are no absolute
have secured by becoming legal resi- grounds for divorce in Russia. In-
dents of Reno in six weeks or of Miami stead, the court may decide whether
in ninety days. The United States Su- any allegation is a sufficient reason for
preme Court, however, ruled in April divorce. Adultery and "patent inability
1949 that a divorce must be considered to live together" are the two reasons
legal if both parties accept it as legalmost frequently cited. Hungary since
when the divorce is granted. Where one 1945 has permitted divorce by mutual
party is not served notice of the divorceagreement after five years of separation.
petition and is not represented at theThe Hungarian divorce code permits
divorce trial, the Court ruled he maythe usual grounds of adultery, bigamy,
challenge the decree. desertion (for six months), attempt on
8 Richard V. Mackay, 1949 Supplement tolife, sentence to death or five years im-
Law of Marriage and Divorce, Simplified, op. 9 Facts on File, X: 207 (Friday, June 23,
cit. note 3 supra, p. 9. Thursday, June 29, 1950).
then still wish the decree they are di-

prisonment, and immoral life.10 Pro-
visions in this Communist-dominatedrected to return again in another six
months, when the decree becomes final.
country thus sound surprisingly like di-
vorce grounds in many of the states in Divorces in Uruguay are also granted on
our country. more conventional grounds of adultery,
incompatibility, and abandonment after
Latin America a period of eight months. No specific
length of residence is required, and for-
In Mexico, divorce legislation varies
eigners find it relatively easy to estab-
in the different states. In one state lish domicile.
only three days residence is required,
while in another mail-order divorce is
Europe
permitted. These divorces have been
rejected as illegal by the courts and The British Matrimonial Causes Act
have been denounced by the American of 1937 went into effect January 1, 1938
Bar Association. Nevertheless, many after the one-man fight of Mr. A. P.
Herbert to bring the divorce issue to a
people secure such divorces, apparently
head in the British Parliament." This
in the hope that no one will bring suit
as to their legality. Unquestionably act put an end to the rigid British di-
certain people have sought Mexican di-vorce code which had restricted break-
vorces because of the ease of obtaining
ing marriage ties except in case of adul-
them. Others have procured them be- tery. The new provisions (most of
which had been recommended by the
cause of obstacles hindering the divorce
in their own country. Royal Commission on divorce in 1912)
Many South American countries, in- provided that divorce might be granted
cluding Argentina and Brazil, have no on additional grounds of desertion for
absolute divorce. Uruguay, however, three years, cruelty, and mental de-
permits divorce to the wife for the rangement lasting over a period of five
asking after two waiting periods have years and adjudged incurable. Initia-
elapsed. To petition for divorce in such
tion of divorce proceedings cannot be-
instance the parties must have been gin until the marriage has been in effect
married for two years, and the wifeatisleast three years, except where un-
allowed to ask for divorce without al- usual suffering might be entailed. These
leging the reasons. She is then re- provisions extend only to England.
quired to wait six months, and if sheScotland has allowed divorce on charges
still wishes a divorce, the court requires of desertion as well as adultery since
her to return in one year. If she still1650. Ireland, under the aegis of strong
wants a divorce a year later, a finalRoman Catholic tradition, admits of no
decree is given. This divorce procedureabsolute divorce, except by act of Par-
was presumably initiated to save women liament. Legal separation is, however,
the embarrassment of relating the de-permitted.
tails of their grievances in the court- In Italy, where the Catholic Church
room. In case both parties wish a di- dominates family law, absolute divorce
vorce, they may apply together and is likewise not obtainable, but legal sep-
return to court in six months. If theyaration may be granted to the husband
10 Cf. Martindale-Hubbell, Law Directory,in case of adultery and to the wife in
Vol. III, 1949. (This reference is alphabetized 11 See also article by David R. Mace in this
but not paginated.) volume of THE ANNALS.
case she is embarrassed by the undigni-

ARE DIVORCE PROVISIONS FRIVOLOUS?
fied way her husband keeps a concubine,
as well as for desertion, nonsupport, The divorce provisions in the United
physical cruelty, threats to health orStates give little basis for the frequent
life, or penal offense. That is, Italy ac-allegations that many grounds for di-
cepts the usual grounds for divorce avorce in our country are frivolous. The
mensa et toro, but does not permit re-reasons for permitting divorce are seri-
marriage. France now permits divorce ous in virtually all the states, unless
to persons requesting it after a period one does not regard adultery, conviction
of one year on grounds of adultery, vio-of a crime, cruelty, fraud, drunkenness,
lence, gross insults, cruelty, conviction desertion, impotence, or nonsupport as
for infamous crime, and penal servitude a serious matter. Only one state, New
and transportation to a penal colony. Mexico, permits divorce for incompati-
In France divorce rates are relatively bility; but surely no one really believes
low despite these provisions, because of incompatibility is not a serious problem
the strong conviction of the French (de-in marriage.
rived from their Catholic tradition) that Nevertheless, some people undoubt-
the family must be preserved. edly take their marriage vows lightly
In the Scandinavian countries divorce and divorce their spouses for relatively
may be obtained by mutual consent asslight misconduct. The frivolity lies
well as for the more conventionalnot in the grounds but in the relatively
grounds of adultery, six months deser-
frivolous evidence offered in support of
tion, insanity for three years, conduct
alleged grounds. Cruelty is a serious
dangerous to life, and life imprisonment.
charge, but, as we have previously men-
Divorce by mutual consent is compli-
tioned, what is alleged as cruelty in-
cated, however, by the requirement thatan extensive range of complaints.
cludes
the couple attempt a reconciliation.
It may vary from charges of physical
They must seek the counsel of a clergy-
violence to failing to take the wife to a
man or a government official. If no club. Any slight or impolite ges-
night
reconciliation is possible, a legal separa-
ture may on occasion be interpreted as
tion is granted for a year in Sweden, cruel and inhumane treatment by some
for a year and a half in Denmark, andOther judges regard the award-
judges.
for three years in Norway. After ingthis
of a divorce decree as a very solemn
waiting period the couple may petition
responsibility, and attempt in various
for absolute divorce if they so desire.12
ways to reconcile the couples seeking
divorce.
The present divorce code in Germany
permits divorce for adultery, serious vio-
DIVORCE LEGISLATION AND FAMILY
lation of marital duties, immoral con-
STABILITY
duct, insanity, venereal disease, or sep-
aration for three years. Insanity Much and disparity in opinion exists as
venereal disease are permitted grounds
to whether there is any exact or causal
only if it can be shown that divorce is
relationship between divorce provisions
morally justified on such a count, andand
family stability. In general, the
separation is valid only if it resulted in in the conservative branches of
clergy
the Christian Church contend that lib-
the disorganization of the marriage.
eraland
12 See also article by Torgny Segerstedt (or lax) divorce provisions acceler-
Philipp Weintraub in this volume of THE ate the divorce rate and promote family
ANNALS.
disintegration. Some proponents of a
more liberal (and averredly realistic) 1,000 marriages per year in the preced-
viewpoint contend that stability of ing decade increasing from 100.2 to
family life may actually be promoted by248.1: The proportion of increase has
requiring mates to meet certain stand-been highest in England and Wales, how-
ards of conduct if they would look for-ever, where the ratio was 2.2 in 1911
ward to lifelong marriages. More con-and 138.5 in 1947 (figures for 1910 and
servative liberals maintain that divorce 1948 were not available). However,
is a result of family disorganization, and the ratio increased markedly in England
not per se a cause of family instability. and Wales under the conservative law
Such persons contend further that for- which permitted divorce only for adul-
bidding divorce or allowing it only for
tery-from 2.2 in 1911 to 12.9 in 1936,
scandalous reasons may actually pro- or nearly 600 per cent. Moreover, the
mote immorality and family instability. laws have not become more lenient since
It is a notorious fact that many mar- 1937, but the ratio rose from 15.2 in
riages are broken in every sense but the that year to 138.5 in 1947. Obviously,
legal one in nations like Italy or Argen- other factors than the laws themselves
tina which permit no absolute divorce. affected the divorce rate.
A major argument of those who pro- Increases in divorce rates are not
moted the British divorce reform in new. Divorce rates in the United States
1937 was that the existent law was pro- have been rising consistently since 1867,
moting social hypocrisy. as Table 1 shows, with increases of /o
Irrespective of the validity of theseof 1 per cent occurring with relative
opposing viewpoints, the impact of regularity
di- at increasingly shorter inter-
vorce legislation on family stability does
vals. Although we have no authorita-
not admit any easy or simple analysis. tive studies as to the actual increases in
It is true on superficial observation that
the number of grounds for divorce oc-
the increased liberalization of divorce curring during this period for all states,
through extending the grounds andthere is no reason to believe that these
shortening residence requirements hasincreases in the divorce rate were so
been accompanied by a world-wide in-much due to any changes in the alleged
crease in divorce. For example, figuresgrounds for divorce as they were to the
compiled by the Metropolitan Life In-mere increase in petitions for divorce.
surance Company for the years 1910 to Crude divorce rates are no satisfac-
1948 showed that divorces had increased tory index to family stability. In states
tremendously in the United States,where there is a high number of divorces
Canada, England and Wales, Scotland, granted to outsiders, the number merely
Australia, New Zealand, Belgium, Den-indicates that many persons from other
mark, France, Netherlands, Norway, states have sought release from mar-
Sweden, and Switzerland.13 The Unitedriage bonds, and the rate is no index at
States has the highest rates for theall to family stability within the state.
whole period, the ratio of divorces perAnd since the statistics do not indicate
the previous residence of those to whom
13 Metropolitan Life Insurance Company, divorces are granted, no reliable figures
Statistical Bulletin, Vol. 30, No. 4 (April 1949),
pp. 1-3. The study says: "The ratios. . .
for migratory divorce are available.
are computed by relating the divorces in any Nevertheless, crude divorce rates indi-
year to the average annual number of mar- cate that some relationship between di-
riages in the decade immediately preceding." vorce provisions and divorce exists.
TABLE 1-DIVORCES AND CRUDE DIVORCE RATES: UNITED STATES, 1867-1948

(Rates per 1,000 estimated midyear population. Figures for 1948 provisional, those for
1947 revised)
Estimated Divorcesb Estimated Divorcesb

Year Midyear Year Midyear
Populationa Populationa
Number Rate Number Rate
1948 146,113,000 405,000 2.8 1907 87,000,271 76,571 0.9

1947 143,414,000 483,000 3.4 1906 85,436,556 72,062 0.8
1946 141,235,000 610,000 4.3 1905 83,819,666 67,976 0.8
1945 139,585,518 485,000 3.5 1904 82,164,974 66,199 0.8
1944 138,083,449 400,000 2.9 1903 80,632,152 64,925 0.8
1943 136,497,049 359,000 2.6 1902 79,160,196 61,480 0.8
1942 134,664,924 321,000 2.4 1901 77,585,128 60,984 0.8
1941 133,202,873 293,000 2.2 1900 76,094,134 55,751 0.7
1940 131,970,224 264,000 2.0 1899 74,798,612 51,437 0.7
1939 130,879,718 251,000 1.9 1898 73,493,926 47,849 0.7
1938 129,824,939 244,000 1.9 1897 72,189,240 44,699 0.6
1937 128,824,829 249,000 1.9 1896 70,884,554 42,937 0.6
1936 128,053,180 236,000 1.8 1895 69,579,868 40,387 0.6
1935 127,250,232 218,000 1.7 1894 68,275,182 37,568 0.6
1934 126,373,773 204,000 1.6 1893 66,970,496 37,468 0.6
1933 125,578,763 165,000 1.3 1892 65,665,810 36,579 0.6
1932 124,840,471 164,241 1.3 1891 64,361,124 35,540 0.6
1931 124,039,648 188,003 1.5 1890 63,056,438 33,461 0.5
1930 123,076,741 195,961 1.6 1889 61,775,121 31,735 0.5
1929 121,769,939 205,876 1.7 1888 60,495,927 28,669 0.5
1928 120,501,115 200,176 1.7 1887 59,216,733 27,919 0.5
1927 119,038,062 196,292 1.6 1886 57,937,540 25,535 0.4
1926 117,399,225 184,678 1.6 1885 56,658,347 23,472 0.4
1925 115,831,963 175,449 1.5 1884 55,379,154 22,994 0.4
1924 114,113,463 170,952 1.5 1883 54,099,961 23,198 0.4
1923 111,949,945 165,096 1.5 1882 52,820,768 22,112 0.4
1922 110,054,778 148,815 1.4 1881 51,541,575 20,762 0.4
1921 108,541,489 159,580 1.5 1880 50,262,382 19,663 0.4
1920 106,466,420 170,505 1.6 1879 49,208,194 17,083 0.3
1919 105,062,747 141,527 1.3 1878 48,174,461 16,089 0.3
1918 104,549,886 116,254 1.1 1877 47,140,727 15,687 0.3
1917 103,413,743 121,564 1.2 1876 46,106,994 14,800 0.3
1916 101,965,984 114,000 1.1 1875 45,073,260 14,212 0.3
1915 100,549,013 104,298 1.0 1874 44,039,527 13,989 0.3
1914 99,117,567 100,584 1.0 1873 43,005,794 13,156 0.3
1913 97,226,814 91,307 0.9 1872 41,972,060 12,390 0.3
1912 95,331,300 94,318 1.0 1871 40,938,327 11,586 0.3
1911 93,867,814 89,219 1.0 1870 39,904,593 10,962 0.3
1910 92,406,536 83,045 0.9 1869 39,050,729 10,939 0.3
1909 90,491,525 79,671 0.9 1868 38,213,216 10,150 0.3
1908 88,708,976 76,852 0.9 1867 37,375,703 9,937 0.3
For 1947-48, excludes armed forces overseas.

bEstimated for 1907-15, 1917-21, 1933-48. For source of dat
Statistics of the United States, 1947, Part I," p. XLIX, 1949.
Source: Provisional Marriage and Divorce Statistics, United Stat
-Special Reports, Vol. 31, No. 16 (Nov. 4, 1949), p. 229, Table 9.
vorce action to be brought after six

DIVORCE RATES BY STATES
weeks residence, as we have mentioned.
The three states with the highestFlorida requires ninety days. The rates
(estimated) divorce rates in 1947 andin Nevada were, however, 99.3 per 1,000
1948 were Nevada, Florida, and Idaho,population in 1947 and 67.1 per 1,000
in descending order. Two of these in 1948, or approximately ten times the
states (Nevada and Idaho) permit di- rates in Florida, which were 9.0 divorces
TABLE 2--DIVORCESa AND CRUDE DIVORCE RATES: UNITED STATES AND EACH STATE, 1947
AND 1948
(By place of occurrence. Rates per 1,000 estimated total midyear population present in ar
Figures for 1948 provisional, those for 1947 revised)
Number Percentage Rate

Area change
1947 to 1948
1948 1947 1948 1947
United Statesb 405,000 483,000 -16.1 2.8 3.4
Total, 37 areas0 300,124 358,134 -16.2 3.0 3.6
Alabama 9,760 10,753 -9.2 3.4 3.8

Arizona b2,400 b3.7
Arkansas 8,555 9,578 -10.7 4.4 5.0
Californiab 42,800 51,300 -16.6 4.1 5.2
Colorado
Connecticut 2,847 3,271 -13.0 1.4 1.7
Delaware 415 830 - 50.0 1.4 2.9
District of Columbia 1,955 2,080 -6.0 2.3 2.4

Florida 18,015 20,919 -13.9 7.4 9.0
Georgia
Idaho 3,190 b3,400 -6.2 5.4 b.5
Illinois
Indiana
Iowa 5,609 6,743 -16.8 2.1 2.6
Kansasb 5,700 6,800 -16.2 3.0 3.5

Kentucky
Louisiana
Maine 2,276 2,929 -22.3 2.5 3.3
Maryland 6,000 6,658 -9.9 2.8 3.1
Massachusetts 7,712 10,084 -23.5 1.7 2.2
Michigan 15,590 21,386 -27.1 2.5 3.5
Minnesota 4,678 5,705 -18.0 1.6 2.0

Mississippi 6,706 7,004 -4.3 3.2 3.3
Missourib 12,200 17,300 -29.5 3.1 4.4
Montana 2,077 2,439 -14.8 4.1 5.0
Nebraska 2,752 3,306 -16.8 2.1 2.6
Nevadab 11,000 13,800 -20.3 67.1 99.3
New Hampshire 1,254 1,437 -12.7 2.4 2.7
a Includes reported annulments.

b Estimated.
c Covers 36 states and the District of Columbia for which divorce data were available for
1947 and for 1948.
TABLE 2-Continued
Number Percentage Rate

Area change
1947 to 1948
1948 1947 1948 1947
New Jersey 6,934 9,074 -23.6 1.5 2.0

New Mexico 2,631 3,160 -16.7 4.6 5.8
New York
North Carolina - 7,000 b1.9
North Dakota 683 835 -18.2 1.2 1.5
Ohio b25,800 29,263 -11.8 b3.3 3.8
Oklahoma - - -
Oregon 6,659 6,707 -0.7 4.1 4.3

Pennsylvania 13,794 16,285 -15.3 1.3 1.5
Rhode Island 817 1,540 -46.9 1.1 2.1
South Carolinad
South Dakota 1,063 1,240 -14.3 1.7 2.1
Tennessee 7,548 9,487 -20.4 2.4 3.1
Texas 39,587 43,584 -9.2 5.4 6.1
Utah 2,199 2,927 -24.9 3.3 4.6
Vermont 520 749 -30.6 1.4 2.0
Virginia 7,080 7,018 +0.9 2.3 2.3
Washington 8,105 bl1,000 -26.3 3.3 b4.7
West Virginia - -
Wisconsin 4,367 6,075 -28.1 1.3 1.9
Wyoming 1,246 1,468 -15.1 4.4 5.5
d No divorces granted. Figures on annulm

Source: Same as Table 1 supra, p. 225, Tab
per 1,000 in 1947 and

guests 7.4 be
may allegedly per 1,000
regarded as ex- i
1948 as Table 2 shows.
treme cruelty. Moreover, th
rate in Nevada was Grounds
nearly in Texas are adultery,times
fifteen de-
as high as in Idaho in
sertion for1947.
two years, conviction for a
While rates were high
felonious in for
offense, insanity Nevada,
five years,
Florida, and Idaho, the
husband highest
and wife living apart numbe
for ten
of divorces were in the states of Cali- years, and extreme cruelty. Ohio has a
fornia, Texas, and Ohio. All three ofsomewhat longer list of grounds, includ-
these states require one year's residenceing impotence, adultery, desertion for
before filing suit for divorce, hence mi-three years, conviction of felony, habit-
gratory divorce is no problem. As for ual drunkenness for three years, nonsup-
grounds, California permits divorce forport, extreme cruelty, prior marriage (so
adultery, desertion for one year, convic-as to make marriage illegal), willful neg-
tion of felony, habitual drunkenness, in-lect, and fraud.14 Of the three states,
sanity for a period of three years, ex- California does not grant an absolute
treme cruelty, and willful neglect. decree until one year after the decree is
None of these grounds is a frivolousfirst entered.
reason, although judges (according to Migratory divorce is thus virtually
newspaper accounts) may permit a lib-
14 Richard V. Mackay, Law of Marriage and
eral construction of what is meant by Divorce, Simplified, op. cit., note 3 supra, pp.
extreme cruelty. Behaving badly before42-49, and Supplement to same for 1949.
ruled out in California, and we may as- mony. The family mores, more than
sume that it does not figure in Texas.most aspects of our culture, have been
Illinois had a slightly higher crude di-deeply affected by religious teachings,
vorce rate than Texas in 1947, but theand most of the generally accepted pro-
rates were identical for 1948. Illinois visions for divorce-adultery, cruelty,
permits divorce when the partner con-
bigamy, force or fraud, impotency, and
tracts venereal disease and for at- insanity-were originally recognized as
tempted murder of the spouse impediments
(which to marriage by the church.
are scarcely to be construed as Later,
liberal
through the interpretation of
reasons), in addition to impotence, Christ's injunction that any man com-
adultery, conviction for felony, habitual mitted adultery who put away his wife
drunkenness for two years, extreme except for fornication, adultery came to
cruelty, and willful neglect. be the only accepted basis for divorce.
Special statistics were gathered by To this dictum the more orthodox Chris-
the National Office of Vital Statistics on tian churches still adhere.
divorce and annulments for nineteen Thus the Roman Catholic Church,
states for 1948. These states included the Church of England, and the Protes-
Alabama, Connecticut, Delaware, Flor-
tant Episcopal Church in the United
States all established similar canons on
ida, Idaho, Iowa, Maryland, Minnesota
(annulments were excluded for Minne-
divorce and denied the right of their
sota), Mississippi, Montana, Nebraska,
members to remarry. These religious
New Hampshire, Oregon, South Dakota,
ideals have been of course a major fac-
Tennessee, Utah, Virginia, Wisconsin,
tor in maintaining rigid divorce laws
and Wyoming. The alleged groundswhere such laws prevail.
were analyzed for each state, and withThe Roman Church, however, has
the exception of Virginia (where the
permitted a high rate of broken mar-
ground is not allowed) the highest num-riages where mixed marriages (between
ber of divorces were awarded on groundsCatholics and non-Catholics) have
of cruelty, or, in case of Vermont, intol-
created tension, by holding that no true
erable severity which presumably means marriage existed and granting an ec-
virtually the same.15 Despite variations
clesiastical annulment of the marriage.
in terminology, the categories for which
More recently the Episcopal Church has
divorces were most frequently granted permitted the remarriage of the innocent
were remarkably alike. party in cases where the Bishop is will-
ing to accept the basis upon which the
DIVORCE AS AN ANSWER TO HUMAN
NEED
divorce was granted as indicating that
the church could suitably extend its
Divorce legislation, like all social leg- blessing to the new marriage. In op-
islation, has arisen out of the attempt to posing divorce between two bona fide
meet a human need. That is, divorce Catholics but permitting virtual divorce
is the compromise which serious men through the fiction of annulment for
have worked out as an acceptable means mixed marriages, the Roman Catholic
for releasing dissatisfied, unhappy, and Church is literally giving sanction to
sometimes outraged and insulted, mates divorce which arises out of religious (a
from the restrictive bonds of matri- form of cultural) tensions, even though
15 National Office of Vital Statistics, Divorcechurch leaders hedge this question by
and Annulment Statistics: Specified States, maintaining that a true marriage never
1948 (Washington, Aug. 7, 1950), pp. 166-68.existed.
The protagonists of easier divorce divorces in 1931 were granted,7 and in

legislation (or what their opponents 1939 the corresponding figure was 50.2
have called lax divorce legislation), on per cent.18 More recent data for the
the other hand, insist that rigid divorcegrounds charged in divorce and annul-
laws result in many gross injustices inment cases in thirteen states in 1948
forcing decent people to maintain the(including Connecticut, Florida, Iowa,
husks of a marriage, and that it is only Mississippi, Montana, New Hampshire,
social hypocrisy to pretend that family Oregon, South Dakota, Tennessee, Ver-
security is promoted by disallowing di- mont, Virginia, Wisconsin, and Wyo-
vorce when the mates are physically andming) showed that all but Virginia per-
mentally disloyal to their vows of permitted divorce for cruelty (or in case
petual faithfulness. of Vermont for intolerable severity).
Since these statistics are for only thir-
REAL REASONS FOR MARRIAGE teen states and include annulments,
DISSOLUTION they are not comparable to the previous
statistics; but in any event, 34,958 of
Social research has further compli-the 94,579 marriages involved were ter-
cated any interpretation we may make minated on charges of desertion.19
of the relationship between divorce laws On the other hand, where adultery is
and their impact upon the structure of the only permitted ground for divorce
the family, for it has been conclusively (as in New York State), judges can-
shown that the legal provisions for di- didly admit that the testimony which
vorce are not an index to the real rea- "proves" adultery is often perjured, and
sons why marriages break up. Divorce that professional corespondents exact
provisions are merely the allowable rea-fees for being caught under "compro-
sons which have become the legal fictionmising circumstances" in order to sat-
whereby men and women secure divorce. isfy the letter of the law. It is a well-
The real reasons for severing marriage known fact that testimony that a man
vows vary with the estranged couples, has been seen with a strange woman in
but virtually all divorces in final anal-
the lobby of a New York City hotel may
ysis occur because serious tensions havebe offered as evidence of a husband's
arisen between husband and wife which sexual misconduct. Judge Greenberg
make continued sharing of a life to- has gone on record as maintaining that
gether difficult if not well-nigh impos-95 per cent of divorces in New York are
sible for one or both parties. The al- granted on the basis of collusive agree-
leged reasons, as Doctor Mowrer so ments to accept such testimony.20
ably discussed a good many years ago,
tend to be the least incriminating 17 Frank J. Indovina and John E. Dalton,
grounds permitted in the particular ju- Compiled Statistics on All States on Marriage,
risdiction, even when the accused spouse Annulment and Divorce (Santa Monica: Low
Publishing Co., 1946), p. 228.
has been guilty of much more repre- 18Bureau of the Census, "Divorce Statis-
hensible conduct.16
tics," Vital Statistics-Special Reports, Vol. 17,
Thus, desertion is the most frequently No. 25 (June 9, 1943), p. 464.
pressed charge for divorce. Cruelty was 19 National Office of Vital Statistics, "Di-
the ground for which 42.7 per cent of all vorce and Annulment Statistics," Vital Statis-
tics-Special Reports, Vol. 35, No. 12 (Aug.
16 Ernest R. Mowrer, Family Disorganiza- 7, 1950), pp. 166-68.
tion (Chicago: University of Chicago Press, 20 New York Times, Jan. 10, 1950, p. 26,
1927), pp. 56-72. col. 4.
146 THE ANNALS OF THE AMRICAN ACADEMY
It is thus obvious that divorce pro- War has been an important factor in
accelerating divorce rates in recent
cedures are full of conflicting ideas and
inconsistencies. Modern divorce legis- years. As the statistics cited show, di-
lation represents piecemeal attempts vorce
to rates rose rapidly following World
alter divorce codes to meet the needs of War I and declined markedly during
estranged married couples. the early years of the depressed thirties.
Neither of these alterations was because
FACTORS IN DIVORCE
divorce legislation changed appreciably.
It seems reasonable to assume that Divorces increased following World War
I, we have reason to believe, chiefly be-
quick and easy divorce provisions stim-
cause the war precipitated many hasty
ulate certain persons to institute divorce
proceedings which they might hesitate and unstable marriages which were
to initiate under jurisdictions governed doomed at the outset to fail.
by more rigid restrictions. That is, Divorces, in final analysis, are the out-
some conscientious and sensitive people growth of family tensions, of maladjust-
are constrained by the fact that they ments between husband and wife which
can secure a New York divorce onlymake by it difficult or impossible for them
scandalous allegations which might to ad-continue their life together. Even
versely affect the life or career ofso, thethere is no question that the will to
spouse. Many people are probably make re- the marriage a success will help
the marital partners to solve their prob-
luctant to air their dirty linen in public,
but might apply for a divorce if itlems didif both make an earnest and honest
not involve the recital of embarrassing effort in this direction. There are many
allegations. Others are constrained cases by of family breakdown, however,
religious teachings, and accept the aber- when one or both persons are unwilling
rations of their mates with patient resig-to try to save the marriage. The eco-
nation in the belief that such resignationnomic independence of women, the vari-
is their Christian duty. It is, however, ous aspects of urbanization (which has
a well-known, although unverifiable, fact destroyed or altered so many functions
that many wives secure divorces at of the
the family), the decline in religious
insistence of their husbands in order to authority, the modern emphasis on the
permit the latter to remarry. A wifeneed for an affectional relationship be-
may disbelieve in divorce from an ideal tween husband and wife, the declining
point of view, but at the same time be- birth rate, the emphasis on the individ-
lieve that the remarriage of her husband ual's right to happiness-all these fac-
is preferable to his living in perpetualtors and many more have contributed
adultery, which he might otherwise in- to family instability.
sist on. Marital tensions arise, as we know,
Sociologists are agreed that the chang-from a variety of sources: from the dis-
ing economic, political, and social con-ruptive impact of a disturbed society
ditions, and in particular the altered upon the life organization of men and
status of women have been major factorswomen; from the irritating influences
in divorce rates. Women who are eco- in the daily grind (whether in the mar-
nomically'independent are less likelyket to place or in the housewife's round of
endure an unhappy marriage thanmonotonous are tasks); from the cultural
women who see no way in which they differences which make men and women
can support themselves outside of mar- shudder at each other's manners and
riage. make them disturbed at each other's
points of view; from differences in tem- secure release from unsatisfactory mar-
perament which make for personality riages. Our generation has somehow
clashes; from differences in capacity to been unable to reconcile its traditional
adjust to the stresses and strains which social ideals for marriage with the ac-
are a part of the responsibility which tual problems men and women en-
marriage itself imposes. counter in the estate of matrimony.
The need for research in family rela-
PRESENT DIVORCE LAWS UNREALISTIC tions and divorce legislation is so patent
that a national commission has recently
Much of the confusion in our think- been re-established to make a detailed
ing about divorce is inherent in the un-and comprehensive study of this prob-
realistic character of divorce laws; for lem.21 Superficially we know a great
most of them adhere to the theoretical deal about divorce, but thus far we have
proposition that divorce may be granted made no serious attempt to relate di-
only because an innocent party has been vorce legislation to a realistic interpre-
injured. Honesty forces us to recognize tation of the basic reasons underlying
that family tensions often are not the serious marital conflict. It is to be
fault of either, but are due as much to hoped that some of the great educational
impersonal influences and social changesfoundations will finance some extensive
as they are to personal characteristics. research in this area of human relations.
In consequence we present "trumped 21 Cf. New York Times, June 17, 1950, p. 9,
up" (or collusive) evidence in order to col. 8.
Mabel A. Elliott, Ph.D., Pittsburgh, Pennsylvania, is professor of sociology and chair-

man of the Department of Sociology at the Pennsylvania College for Women. She has
also taught at the Universities of Kansas and Minnesota and Northwestern University.
She has served as research director of the Kansas Public Welfare Commission. She is
active in many civic organizations, is a member of the Pennsylvania Committee on Penal
Affairs, and recently directed the Shadyside Community Survey in Pittsburgh. She has
been assistant editor of the American Sociological Review; is author of a number of
works, including a forthcoming textbook in the field of criminology; and is co-author of
Social Disorganization (third edition, 1950).

Divorce Legislation and Family Instability

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Divorce Legislation and Family Instability

Uploaded by

Copyright:

Available Formats

American Academy of Political and Social Science

Divorce Legislation and Family Instability

MODERN divorce legislation re-

tery, desertion, habitual drunkenness, quently he advertised the opportunities

TRENDS IN DIVORCE LEGISLATION

then still wish the decree they are di-

case she is embarrassed by the undigni-

TABLE 1-DIVORCES AND CRUDE DIVORCE RATES: UNITED STATES, 1867-1948

Estimated Divorcesb Estimated Divorcesb

1948 146,113,000 405,000 2.8 1907 87,000,271 76,571 0.9

For 1947-48, excludes armed forces overseas.

vorce action to be brought after six

Number Percentage Rate

United Statesb 405,000 483,000 -16.1 2.8 3.4

Total, 37 areas0 300,124 358,134 -16.2 3.0 3.6

Alabama 9,760 10,753 -9.2 3.4 3.8

District of Columbia 1,955 2,080 -6.0 2.3 2.4

Kansasb 5,700 6,800 -16.2 3.0 3.5

Minnesota 4,678 5,705 -18.0 1.6 2.0

a Includes reported annulments.

Number Percentage Rate

New Jersey 6,934 9,074 -23.6 1.5 2.0

Oregon 6,659 6,707 -0.7 4.1 4.3

d No divorces granted. Figures on annulm

per 1,000 in 1947 and

The protagonists of easier divorce divorces in 1931 were granted,7 and in

Mabel A. Elliott, Ph.D., Pittsburgh, Pennsylvania, is professor of sociology and chair-

You might also like