A Brief History of Women’s Rights in Divorce in the United States
In honor of International Women’s Day, please find below a brief history of women’s rights in U.S. divorce history.
Divorce used to be very rare and now is quite common. The medium length of marriage in the United States these days is around 11 years. 29% of marriages will suffer some form of ‘disruption.’ During the history of the United States, women went from effectively being a chattel of their husband to being largely equal in the divorce laws.
In 1769, the American colonies accepted the English system called coverture. Women were “covered” under the law by a man from birth. At birth, a woman’s rights were subsumed by her father. Upon marriage, they passed to the husband. During her entire life—unless she became a widow—she had essentially the same rights as a child, a slave, or a person declared mentally unfit. Women did not legally exist. Married women could not own any property and upon the death of her husband, a woman’s legal agency would transfer to her nearest male relative. A husband could take custody of children after a divorce and refuse to allow his ex-wife to see them. He could seize his wife’s property from other heirs upon her death.
During colonial times, the North was more amenable to granting divorces for fault, whereas the South largely prohibited it. In the judicial tribunal of 1629, the Massachusetts Bay Colony was allowed to grant divorces on the basis of adultery, desertion, bigamy and in many cases impotence as well. Whereas the southern colonies prohibited divorce even if legislation was in place.
After 1776, divorce law was less restrictive and was given to the judiciary. Women were at a distinct disadvantage, because they were a legal non-entity - it was difficult for them to claim ownership of property or financial assets. Proof of cause still had to be provided, i.e. that one spouse had committed the crimes listed above, or were physically cruel, had threatened their life, did not provide economically or refused their marital duty in the bedroom.
The 19th Century
The first laws protecting a woman’s right to property was passed in the 19th century but operated after the husband’s death. The first law was passed in Connecticut in 1808. It allowed a woman to leave a will. But that was power only after death. Similarly, widows had the right of “dower” protecting the right to property they brought into the marriage, as well as to one-third of their husbands’ estate – but again this power only came after his death.
For most of the 19th century, states passed marriage reform laws expanding women’s property rights. Mississippi was the first state in 1839 which granted women the right to hold property in their own names - they had to have permission from their husbands, however.
New York passed sweeping changes. In 1849, New York passed the Married Women’s Property Act, which gave married women separate control over any rent or profit earned from property she held at the time of her marriage and protected it from her husband’s creditors. Women were also given property rights during marriage through a grant or bequest, such as inheriting from a woman's father. A current or former husband could not touch the property. New York expanded women’s rights in 1860 by stating “the earnings of any married woman, from her trade, business, labor or services, shall be her sole and separate property.” Women had full control over the money they earned.
Divorce became increasingly common, though adultery or cruelty still were really the only grounds for dissolution. Women’s rights advocates—including Victoria Woodhull, the first woman to run for president of the United States in 1872—began to argue that the law and religion should have nothing to do with marriage or divorce. Woodhull proclaimed that a marriage occurred when two people fell in love and dissolved when they were no longer in love.
Early 20th Century
By the year 1900, every state had laws granting married women the right to keep their own wages and property. Over the next three decades (1907-1931) the fight was to allow women to marry foreign men. A wife’s nationality was dependent upon her husband’s status. Eventually, the Nationality Act of 1940 allowed women to marry men of any nationality without loss of citizenship and restored the status of all affected by previous laws.
By the end of the 18th century, there were numerous ‘divorce mill’ states or places such as Indiana, Utah, and the Dakotas where you could go and get a divorce. In 1887, Congress ordered divorce statistics at a federal level.
The Inter-Church Conference on Marriage and Divorce was held in 1903 in an attempt to use religion to limit the occurrence of divorce. However, feminism and the general relaxation of views towards divorce allowed divorce to gain traction.
In the 1920s trial marriages were established that permitted common law marriage. It was one way to accommodate prenuptial contracts. Marriage counseling was beginning to become popular.
The Family Court
The Family Court system started in the 1950s and was the first time in decades that the legislature and judicial system in the US tackled the divorce issue. Law firms specializing in divorce started appearing all over the country.
The Later 20th Century
In 1967, interracial marriage was legalized in the Supreme Court case Loving vs. Virginia.
No-fault divorces started up in the 1970s. California led the way in 1969 in the advent of no-fault divorce.
As can be seen, women’s station in society tracked the history of divorce. As we celebrate International Women’s Day, let’s celebrate where women started and are now. If you would like to learn how your rights are affected by current divorce laws in California, contact the Law Offices of Jane Migachyov NOW.