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The History of Divorce: How It Continues To Affect You

History of Divorce in America

History of Divorce in America 

 

Excerpted From Margorie Engelís Divorce Help Sourcebook

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The history of divorce in America reflects societal changes in morality, economics, mobility, and gender rolesfactors that take their toll on marital relations. In colonial times, abandonment or mutual separation were popular ways to end a marriage, and "Wanted" ads for runaway husbands or wives were not uncommon. But records show that divorce has been the preferred method of termination when distribution of property or child custody issues are involved. Crumbling court documents, dusty history volumes, period novels, diaries, magazines for ladies, and law books provide a kaleidoscopic picture of divorce, an image modified by events in United States history.

 

Throughout the history of divorce, the same issues frequently appearthe role of blame for ending a marriage, acceptable grounds for divorce, distribution of assets and liabilities, spousal support, and child custody. Dealing with causes, consequences, and societal responsibility is an ongoing process. Even advocacy groups (women's groups, the legal profession, legislators, religious organizations, etc.) have fluctuated in their degree of involvement in the divorce process.

 

Throughout the history of divorce, the same issues frequently appearthe role of blame for ending a marriage, acceptable grounds for divorce, distribution of assets and liabilities, spousal support, and child custody.

 

Colonial Policies and Procedures

 

In colonial America, marriage and family matters were mainly regulated by the manners, customs, ethics, and religious norms of the times. Judeo-Christian religious leaders and civil authorities adopted their society's theological ideas about guilt, innocence, and punishment for those couples seeking divorce.

 

Fairly quickly, legislative and court authorities took over the lead in regulating marriage and divorce issues. In 1629, the Colony of Massachusetts Bay created a judicial tribunal for divorce matters, empowered to issue divorce decrees on grounds of adultery (the primary justification, complete with proof of guilt or innocence), bigamy, desertion, and impotence.

 

The northern colonies developed statutes for handling legal divorces. The middle colonies created limited provisions, and the southern colonies focused on efforts to prohibit divorce except in cases of proved or confessed adultery. Where divorce was permitted, the variations of policies and practices were centered around the issue of more or fewer "grounds." Any difference with English law did not pose a problem because the actions of colonial courts did not require approval by the English authorities.

 

Financial settlements, custody issues, and the legal right to remarry hinged upon a determination of fault. Harsh social and financial punishments were ordered for the guilty party. Sometimes, when both husband and wife had "faults," a divorce was denied. When a divorce was granted, court-ordered alimony or child support was not always paid.

 

By the early 1770s, restrictive divorce laws did not mesh with our long-growing aversion to tyranny, the sentiment that led to the American Revolution. After 1776, the independent states assumed jurisdiction for divorce and the general attitude was more lenient. As legislators realized that divorce hearings took time from the "more important work" of enacting law, the granting of divorces became a judicial task based upon a state's rules and regulationsa system that continues today.

 

Spousal Roles Change

 

Numerous records exist of divorces during our country's formative years. Divorces were becoming more common but not yet considered a major social problem. The people elected Andrew Jackson President of the United States even though he had married a divorced woman. Nonetheless, divorce was not common in the 18th or 19th centuries. Men and women had specific marital responsibilities and lived with considerable restraint on their behavior, always subject to community approval. Men were assigned the world of business and family support. Women were custodians of the home. Gradually women lost social power within their own families, to the extent that they became known only by their husbands' names.

 

Marriage made a woman a legal non-entity for the purposes of owning property or businesses, signing contracts, or any other acts of personal business. Common law allowed a woman's husband to become the absolute owner of everything she brought to the marriage or acquired after marriage. This was the basis for alimony, when awarded, because the man controlled all of the family assets. Unfortunately, when a husband worked outside the home, his wife was often unable to pinpoint the family's assets so that reasonable financial awards could be made.

 

After a divorce, women could once again conduct personal business and be financially responsible for themselves. Ironically, while prohibiting divorce, most southern states recognized a married woman's rights regarding her separate family property. This was managed with pre-nuptial agreements. Struggles relating to women's property rights in the United States continue to this day.

 

In 1848, New York and Pennsylvania passed the first Married Women's Property Acts, which were of value to women entering marriage with property, but which did not change the common law rule that gave a husband the right to the services and the earnings of his wife. While the acts had no specific value to middle- and working-class women (whose only assets were their physical and mental abilities), the acts did have two important roles: they gave rise to discussion of women's rights, and they encouraged women to act on their own behalf. Meanwhile, each state proceeded in its own way and at its own pace in allowing women legal rights and contractual capacity regarding money and property. It was not until 1983 that a Uniform Marital Property Act attempted to define a national standard for woman's property rights (for property brought to marriage, acquired within marriage, and distributed in divorce), but it has not been adopted by all states.

 

Socioeconomic Changes

 

Americans focused attention on the divorce issue after the Civil War (1865), because the rate of divorces was increasing about five times faster than the growth rate of the population. Furthermore, society was not prepared to rebuild marriage and the family, while at the same time restructuring economic and political institutions. Statisticians indicate that a peak in the nation's divorce rate after wars is a predictable occurrence. Some studies relate this phenomenon to hasty marriages and long periods of separation.

 

Following the Civil War, there were other "causes" of divorcefamily upheavals due to westward expansion, the flood of immigrants, and the beginning of industrialization. Marriages of convenience took place because married men were perceived to be more stable and successful in business. Husbands increased their outings with public amusements at taverns and with prostitutes. Wives weren't outraged that husbands did these things but outraged that their moral lapses squandered family money and often resulted in abusive behavior at home. The common response was to "look the other way."

 

By 1877, the rate per 1,000 of eligible people who never married reached an all-time high. Those who did marry took on many of the characteristics associated with the today's "modern American family": families became smaller, parents became more emotionally involved with child rearing, and spouses were expected to also become companions. During the 1880s, society gave women sole responsibility for cleanliness, godliness, culture, and manners in the family household. Author Nathaniel Hawthorne depicted women as the symbols of the earth who were to monitor men's behavior.

 

Omnibus clauses, which had given courts and legislators the power to grant a divorce for any reason they felt justified, were no longer acceptable. During the decades following the Civil War, the country needed an ordered society. That need enhanced the moral notion of marriage based on codes of right and virtuous behavior.

 

Between 1885 and 1906, state legal systems across the country tinkered with restrictive marriage and divorce legislation. However, the divorce rate multiplied as many men and women found it increasingly difficult to live according to the strict sex roles and community values that were defining appropriate behavior. Records show that there was no hesitancy in discussing private matters, such as sexual relations, hygiene habits, and social behavior, in divorce court.

 

As the country expanded, divorce became a national phenomenon. The West has always had a slightly higher divorce rate than the East, but couples separated in every state. For instance, in South Carolina, divorce was abolished during the years 1879 to 1948, bringing the state's divorce rate down to zero. But it didn't keep families together. Instead, South Carolina was eventually challenged to develop laws regarding how much wealth a married man could deny his wife and bequeath to his mistresswithout comparable laws for women and their paramours.

 

Migratory Divorces

 

Americans have always been a mobile group, but relocating to follow the American dream of better jobs and better futures created marital problems for some couples. Western states had permissive and less complicated divorce statutes because the settlers were busy establishing their homesteads and government. Thus the pioneer movement created what became known as the "migratory divorce problem" for the more established eastern states. Estranged husbands and wives were able to seek divorces in states with laws more liberal than those of their own state. For those who could afford to make the trip, "quickie" divorces were available along the westward route where residency requirements were measured in months rather than years, and grounds for divorce were liberal.

 

Migratory Divorces

 

Americans have always been a mobile group, but relocating to follow the American dream of better jobs and better futures created marital problems for some couples. Western states had permissive and less complicated divorce statutes because the settlers were busy establishing their homesteads and government. Thus the pioneer movement created what became known as the "migratory divorce problem" for the more established eastern states. Estranged husbands and wives were able to seek divorces in states with laws more liberal than those of their own state. For those who could afford to make the trip, "quickie" divorces were available along the westward route where residency requirements were measured in months rather than years, and grounds for divorce were liberal.

 

Prominent in the list of early "divorce mill" states were Indiana, Utah, and the Dakotas. Towns in these areas catered to people seeking a divorce by offering them convenient public transportation, pleasant hotels, good food, and accommodating lawyers and court systems. Divorce was a profitable business, one not easily turned away by concerns about "national shame." The conservatives did have some success in tightening divorce laws and procedures, but there was growing recognition that these legal measures could not cure the nation's problem of marital breakups.

 

Among those remaining in their home states, couples manipulated their real reasons for wanting a divorce into the least stigmatizing of those grounds acceptable to their state. Or, couples simply deserted each other and ignored legalities altogether. The immeasurable numbers of desertions and married couples who agreed to live apart defy accurate correlations between divorce records and marriage breakups.

 

Statistics Underscore Need for Reform

 

Responding to petitions from leaders in the fields of religion, law, and education, Congress ordered the first federal compilation of statistics on marriage and divorce in 1887, primarily to quantify the real versus perceived numbers of migratory divorces. The Commissioner of Labor was directed to collect statistics on marriages and divorces occurring in all states and territories during the period from 1867 to 1886. Resulting information about out-of-state divorces seemed to indicate numbers no higher than those to be reasonably expected in a mobile society. Nonetheless, after that first survey, compiled statistics have been a powerful weapon used by liberals (promoting individual rights) and conservatives (who hold marriage as a sacrament to be terminated only because of adultery) to emphasize their viewpoints.

 

Responding to petitions from leaders in the fields of religion, law, and education, Congress ordered the first federal compilation of statistics on marriage and divorce in 1887.

 

In 1906, after Congress appropriated funds for continuing to collect marriage and divorce statistics each decade, it also organized a National Congress on Uniform Divorce Laws that included representatives of 42 states and territories. Highly vocal special interest groups, which did not include representative numbers of women in policy-making sessions (the country still wasn't heeding Abigail Adams' 1776 admonition to "Remember the Ladies"), finally managed to craft a national recommendation. However, the divergent viewpoints between conservative and liberal states made it almost worthless. Differences of colonial background, religious history, and the social, political, and economic developments made the laws in each region distinctive. Even within regions, each state protectively guarded its autonomy in matters relating to marriage, divorce, and property law.

 

Toward More Lenient Rulings

 

By the turn of the century, Protestant denominations had joined forces. They sponsored the Inter-Church Conference on Marriage and Divorce in 1903 that campaigned for more restrictive marriage and divorce rules, preferably nationally uniform laws. In addition, many of the churches extended their prohibition on remarriage. This was not well-received by parishioners. In order to avoid mass defection by their congregations, churches made a pragmatic decision to rescind the prohibition and requested that ministers refuse to officiate at remarriages. Today, most religions require a formal or informal approval process for a second marriage, but the right to remarry is generally perceived as a "given."

 

Judges varied in their personal prejudice as well as understanding and rulings of the divorce laws. The discrepancies in judicial proceedings and verdicts leaned away from the strict law of the books toward granting a divorce on unexamined grounds with a "stamp of approval." As the 20th century dawned, conservatives were voicing a need for greater stringency in the laws while liberals were developing new policies to regulate the rules for obtaining a marriage license and a divorce decree.

 

Early in the 1900s, following a gradual shift in the definition of morality, divorce began losing some of its stigma in the minds of the populace and the courts. Even so, the social cost of emotional, financial, and court services required by family breakups continued to increase. Social scientists joined the professional debates. While accepting rules of right conduct, they pointed out that neither punitive divorce laws nor restrictions upon remarriage were effective deterrents. Looking at the problem of divorce from another angle, they suggested that getting married should be more difficult than getting divorced.

 

Stricter marriage laws and regulations, including premarital education programs, were presented as a better way of maintaining stable marriages. This was an important objective in recognition of the family realm as one of the main places where individuals looked for fulfillment in life.

 

Stricter marriage laws and regulations, including premarital education programs, were presented as a better way of maintaining stable marriages. This was an important objective in recognition of the family realm as one of the main places where individuals looked for fulfillment in life, because fulfillment was becoming harder to achieve. Jobs had become routine and depersonalized. Community activities weren't an adequate substitute for domestic tranquility, and moving out of farming communities introduced an element of isolation from old friends and family.

 

Innocent Victims of an Imperfect Society

 

Around 19l0, the divorce experts shifted gears and decided that perhaps divorcing couples weren't morally defective, that social and economic problems were more the fault. Instead of blaming the individual for the downfall of the family, the new viewpoint blamed industrialization, urbanization, and the women's movement. Divorce was deemed a symptomdivorcing couples were innocent victims of an imperfect societyand the focus shifted to social reform instead of trying to rehabilitate individuals.

 

Over the years, conservatives and liberals had proposed ideas, many of which were now adopted into mainstream thinking. These proposals included labor laws, public health regulations, extension of compulsory public education, and premarital education on family living. Family-life education, formerly a function of religious institutions, moved from a subordinate to a central place in social influence. Self-help authors, who wrote advice manuals on how to choose a good marriage partner and live "happily ever after," recommended choosing wisely first and then falling in love, joint decision-making, and regular communication. Clearly, these were efforts to help families adjust to the demands of the modern social/work scene.

 

Industrialization and expanding urbanization changed family life, and statistics in the early 1900s confirmed that the divorce rate was rising rapidly in urban America. City life was full of new diversions and temptations. Men, women, and children worked outside the home, resulting in more money, greater independence of family members, and affordable diversions. Hollywood showed new sexual roles, styles of courtship, and fairy-tale marriage on screens all over the country. Librarians noticed an increase in the lending of books about sexual adventures and romance. Women, as well as men, began demanding freedom from family responsibilities. Men had been enjoying amusements outside of the home for years; now, women began attending movie theaters and participating in the fun at dance halls.

 

Couples at every socioeconomic level spent less time together and began to want material things and romantic attention far in excess of realistic means and fulfillment. The evolving definition of a happy marriage was one that required a delicate balance between old-fashioned duties and modern excitement. Contrary to the commonly held view that divorce was concentrated among certain social classes, records show that divorce occurred in every racial, ethnic, and occupational group.

 

By 1910, feminism began to bear the brunt of attacks as the predominant social cause of family change. In the traditional family, members had specific positions and functions, but the modern family concept, emphasizing the pursuit of personal happiness and individualism, challenged customary role assignments. At the same time, wages and types of jobs available promoted personal decisions to have fewer children.

 

Prior to the 19th century, divorce was virtually a male prerogative. As women gradually gained financial independence (through rights to retain their own property throughout marriage and with alimony awards upon divorce), they were able to utilize these rights to enhance their quality of life by leaving repressive and abusive marriages. Whereas many marriages had been previously held together by religious rules, social pressure, or the wife's economic helplessness, both men and women could now exercise marital options.

 

The presumption of male dominance in a marriage was weakening, yet still strong enough to minimize the likelihood that a wife's opinion received equal consideration. A wife's filing for divorce was portrayed as destroying the family, not the result of a husband's causative behavior.

 

Finances and Fulfillment

 

While the feminist movement received great attention, the majority of wives remained dependent upon their husbands, consistent with their traditional positions in both the home and the economy. Working wives were generally expected to handle their outside job and the family's household chores, performing daily domestic duties much as their earlier sistersthe original American "second shift" workershad done in camps along the westward trail.

 

Beginning during the World War I period, most men became reluctant to have their wives work outside of the home. Aside from the male status symbol as "good provider," the dollar value of women's work at home was usually more than the value of their potential earnings outside when extra expenditures for clothes, food, transportation, and child care were taken into account. Women were encouraged to focus on feminine wiles, coquettishness, passivity, and youthfulness as their keys to happiness.

 

The suggested formula for a woman's personal fulfillment was to hide her true nature and focus on having fun. Ladies Home Journal advertisements from this era promoted cosmetics, soaps, and a host of other enticements designed to attract or keep a man. Ads promoted the new telephone as a way of speaking with otherwise inaccessible femalesforerunner of today's "phone sex." By 1933, with Oxydol's Own Ma Perkins, Proctor & Gamble struck gold on radio by providing serial dramas, which housewives listened to while doing the family laundry. The accompanying advertisements prompted more P&G detergent salesthe source of "soap" in soap operas.

 

Shallow relationships and unfulfilled expectations of money, fun, excitement, and amusements led to disappointing marriages. Unhappy couples increasingly turned to divorce courts to resolve conflicts involving moneywho should make it, how much was enough, how it should be spentas well as hygiene and personal appearance.

 

Alternative Suggestions to a National Crisis

 

By 1916, according to the United States Department of Human Services, the country had garnered the dubious distinction of leading the world in the number of divorces. But, with World War I demanding the nation's attention, divorce was simply regarded by most as an unfortunate consequence of social problems. By 1920, with the predictably higher post-war divorce statistics, family breakups were becoming a national crisis. Neither the judicial nor legislative systems, at the state or federal levels, were solving the problem of family disruption. Ageless debates continued regarding marriage as a sacrament or a contract, the relative merits of strict or lenient divorce laws, and the myriad causes of divorce.

 

In the 1920's, unmarried couples sampled trial marriages after agreeing to have no children, no life-long commitment, and no economic consequences if they parted. A variation of this idea was repeated beginning in the 1970s, becoming known as POSSLQ (persons of the opposite sex sharing living quarters). Some couples signed prenuptial contracts (used by wealthy southern women during colonial times and the precursor of the Premarital Agreement Act of 1983) that provided for easy and mutual dissolution as well as provisions for the future care of children. Another variation was "visiting marriages" wherein each spouse maintained a separate residence and they met by appointment, somewhat akin to present-day commuter marriages for couples with dual careers in different cities.

 

Divorce Rates Increase

 

By 1916, according to the United States Department of Human Services, the country had garnered the dubious distinction of leading the world in the number of divorces. But, with World War I demanding the nation's attention, divorce was simply regarded by most as an unfortunate consequence of social problems. By 1920, with the predictably higher post-war divorce statistics, family breakups were becoming a national crisis. Neither the judicial nor legislative systems, at the state or federal levels, were solving the problem of family disruption. Ageless debates continued regarding marriage as a sacrament or a contract, the relative merits of strict or lenient divorce laws, and the myriad causes of divorce.

 

Marriage counseling had become popular by the turn of the century. Additionally, to stem the divorce tide rolling in during the first few decades of the 20th century, education programs sponsored by social services and private practices became increasingly popular. Couples in these education programs were taught about the technical aspects of separation and divorce. [Divorce {education}]

 

Psychological Experts Step In

 

A psychological rather than a moral tone began to pervade the issue of divorce. A divorced couple, including their children, were labeled psychological misfits from "broken homes." At the same time, the problems experienced by the children of divorce were highly publicized by the popular media.

 

The psychiatric emphasis was on behaviorone's reaction to personal history and to the environment. Individuals and family units were observed as they acted upon and reacted to both internal and external forces. Divorce and marital breakdown were viewed as medical problems instead of moral or social ones. Freud presented the theory that unstable marriages and divorces were the products of neuroses formed in childhood and played out in adulthood.

 

Medicine, with psychiatry as a related health specialty, gained tremendous credibility. Its systematic study of data was the justification for extending social control beyond the divorce proceeding. Treatments or cures were proposed in lieu of court "punishments" such as withholding child custody and large alimony/child support awards. During the period after World War I, the family court movement tried to bring the law in line with social changes.

 

Sex and Marriage

 

In addition to psychological problems, divorce was associated with sexual incompatibilitiesa new twist on the role of adulteryand presented an urgent need for sexual information and instruction. The pre-Depression period found couples seeking guidance in the art of marriage from an assortment of courses and manuals and the birth of a new profession: the study of couples' sexuality.

 

By the 1920s, the desirability of sexual pleasures had captured the public imagination. While intercourse had been a mainstay of courtship during the Revolutionary War period (and often resulted in premarital pregnancy), the 1920s brought about a "sexual revolution" to rival the more highly publicized one in the 1960s, and the number of pregnant brides increased. The desire for sexual gratification led young people to the altar, but youthful marriages often ended up in divorce court. Divorce rates in the 1920s climbed up the graph.

 

More Grounds Cultivated

 

Collusion, the mutual agreement between spouses to obtain a divorce, was growing. Extending the grounds for divorce was on the liberal reformer's agenda. An earlier breakthrough was the acceptance of "mental cruelty" as valid grounds for divorce. In the 1920s and 1930s, reformers petitioned for grounds of "incompatibility"a terminology compromise for divorces by mutual consentallowing couples a legal dissolution of marriage without using fraudulent means.

 

Paid professional witnesses testifying to adultery lost their steady employment when couples were determined to use grounds that were the least damaging to everyone, regardless of the actual situation. Now the petitions were openly recognized as simply legal documents. This bypassing of the adversarial divorce system paved the way for what was to become the no-fault divorce. In all cases, however, the legal system retained its control over the emotionally charged divorce issues of child custody and financial settlements.

 

Legislation to create a uniform federal divorce law was introduced in every Congress between 1884 and 1970, culminating in the Uniform Marriage and Divorce Act of 1970 (amended in 1971 and 1973). However, the act has not been adopted by all states.

 

Variance in divorce laws throughout the states continued to create problems. Legislation to create a uniform federal divorce law was introduced in every Congress between 1884 and 1970, culminating in the Uniform Marriage and Divorce Act of 1970 (amended in 1971 and 1973). However, the act has not been adopted by all states. Reformers on both sides could see the advantage of uniformity but the conservatives and the liberals could not reach a compromise. Change continued to come covertly from the courtroom where judges were giving liberal interpretations to the written codessometimes based upon whether they liked the husband's or wife's appearance or attitude.

 

Parental Attachments

 

By the mid-1920s, with the decline of an agricultural society and the enforcement of child labor laws, children were no longer seen as economic assets by their fathers. Mothers became the preferred guardian, premised upon the welfare and "best interests of the child," criteria adapted from the Guardianship of Infants Act of 1925 in England.

 

Prior to the 20th century, alimony was rare and fathers denied custody were sometimes exempted from child support obligations. The law governing child support obligations has, for the most part, been redefined under pressure by those parents having to live with its consequences so, at this point in time, financial responsibility was mandated. Court orders did not address solutions for inadequate funds or disappearing parents. It was not until 1992 that we developed the Uniform Interstate Family Support Act, which made support orders enforceable across state lines, superseding less comprehensive acts in 1950, 1952, 1958, and 1968.

 

Reformers reminded the courts that the state and federal court systems had assumed responsibility for providing services to help with the economic as well as psychological and social consequences of divorce. Therefore, to allow maximum flexibility, divorce rulings could be reversed based on a significant change in circumstances such as remarriage, moral transgressions, altered financial situations, and the wishes of the child. Parent-sponsored kidnapping, which had been occurring sporadically throughout our history, now appeared nationwide as an alternative to custody fights both during and after the divorce process.

 

Meanwhile, the law continued to function in traditional patterns, subject to variations depending upon the attitudes of judges and lawyers, and the rulings of states in which they practiced. Spouses followed another divorce patterndelaying divorce during times of limited resources. The 1930s Depression leveled the upward divorce trend for a brief period of time.

 

The migratory divorce issues had not gone away and divorce mill states were competing with each other for the lucrative divorce trade. A short residency requirement was the predominant provision designed to attract divorce seekers. The residency issue created a nightmare for couples and legislators who were caught in the legal tangle between the Constitution's "full faith and credit" doctrine (according to the United States Constitution, each individual state is obligated to recognize "the public Acts, Records, and Judicial Proceedings of every other state") and a state's right to regulate its citizens according to its own standards. In 1942, the United States Supreme Court ruled valid in all states the six-week residency requirement for easy-to-obtain Nevada divorces.

 

Delicate Balance for Parenting

 

Social scientists joined forces with psychologists and together they popularized clinical ideas connecting divorce with broken homes and broken lives. The studies underscored the mother-child relationship.

 

On one hand, the social scientists encouraged the courts to legitimize the "tender years" presumption in custody rulings for children between birth and age seven. Supporting their position was the Victorian idealization of motherhood and Freud's theory of maternal instinct. These popular views on child rearing warned that separation from the mother would result in devastating effects on the child and society. The views were so persuasive that courts ruled, unless proven otherwise, "Mothers are better suited to care for children than fathers."

 

On the other hand, social scientists pointed to mother-child relationships as the root of future evils, and women's magazines warned against the dangers of mixing work with motherhood. Mom, as caretaker, was questioned about the toilet-training techniques she used with her toddlersinformation considered by psychologists as a significant factor in one's development. The potential for "mother as bad guy" was linked to psychological and social problems such as delinquency, criminality, suicide, and mental illness.

 

Throughout our history, children had been a deterrent to divorce, but by 1973, more than 60 percent of divorcing couples had children. With increasing numbers of children in divorce cases during the late 1960s and 1970s, major reform objectives were based upon psychological theories of parenthood and the best interests of the child to counter the presumption of mother as sole custodial parent. Initially, a father's chances of custody were increased if his child was beyond the "tender years," which ended at age seven. The legal concession in most cases was awarding the noncustodial parent visitation privileges. While not intended to relate money with visits, in reality, visitation was viewed by the custodial parent (usually the mother) as an exchange for financial support (usually by the father). The child's behavior was viewed by all as a reflection of the quality of parenting care.

 

The Best Interests of the Child

 

Throughout our history, children had been a deterrent to divorce, but by 1973, more than 60 percent of divorcing couples had children. With increasing numbers of children in divorce cases during the late 1960s and 1970s, major reform objectives were based upon psychological theories of parenthood and the best interests of the child to counter the presumption of mother as sole custodial parent.

 

Problems for Courts and Couples

 

The courts had multiple divorce-related assignments: prevent divorce through reconciliation, limit the negative aftereffects of divorce, and promote counseling or therapy. But financial resources for the courts to accomplish these goals were scarce. Divorce was acknowledged by the legal system as an unfortunate personal and social situation. Data collected by the Vital Statistics Division of the U.S. Department of Health and Human Services on increasing numbers of divorces strengthened the court system's desire to curb dissolutions rather than to liberalize policies and to search for alternative solutions for divorce.

 

Marriage counseling, a service begun in the 1920s, became an officially recognized mental health program after World War II. Reformers proposed social and behavioral science schooling for lawyers and judges who had received only adversarial training in their legal education. The psychological focus gave psychiatrists and mental health professionals an added line of worktestifying as expert witnesses in courts.

 

Psychosexual problems were increasingly labeled as the primary cause of marital failurewith estimates ranging up to 75 percent of divorces attributed to these problems. Yet, sexual incompatibility did not become a statutory grounds for divorce. Instead, marriage manuals, which first surfaced in the 1920s, began to do a brisk business. Self-help for marriages advocated improving communication and learning how to fight fairly as two of the ways to avoid becoming a divorce statistic.

 

Eventually, the once-high post-war divorce rates settled down. A decline in divorce rates during the early 1950s was touted as proof of a relatively high level of satisfaction with family life and marriage and that couples who had grown up during the Depression valued a stable home. Years later, the general public became aware of the large quantities of alcohol and tranquilizers that were soothing discontent during those years. Toward the end of the 1950s, the rate of divorces began an upswing that continued into the 1980s.

 

Family Court

 

The family court idea was originally proposed before World War I, but gained greater acceptance when rising divorce rates and statistics on family dysfunction in the late 1950s generated new supporters and incentives for remedial action. Recommendations by liberal and conservative divorce reformers were acknowledged and the law turned more and more toward family courts and counselors for answers.

 

Once again, the courts failed to reach critical agreementsthis time on a clear role of the family court, the training of counselors, the methods of treatment, or the realistic source of funding. In addition, there was no way to measure success or failure. To date, not much statistical or anecdotal evidence exists that family courts and counseling are successful in promoting family stability. An August 1993 report in the Wall Street Journal about the family court system states, "In virtually all cases, in virtually all communities, the myriad courts and social service agencies do not communicate adequately with each other, resulting in unnecessary delay, duplication, and contradictory rulings and recommendations."

 

During the 1950s, while the family courts were being established, divorcing couples were maneuvering through the existing legal system for divorce. But by the late 1950s, over 95 percent of divorces were uncontested. So, instead of holding hearings to evaluate evidence for substantiating grounds or to require counseling and educational programs, judges were placed in a position of ratifying divorce agreements made by couples prior to their court appearances. The law didn't have a chance to become a strong agent of therapy or healing and, without the mechanics of a family court defined and funded, very little changed in legal practices or statutory codes.

 

Meanwhile, socioeconomic conditions exerted greater impact on divorce statistics: Divorce among middle and upper class families occurred more frequently, the feminist movement was upgrading the status and opportunities of women for independence, and noncustodial fathers were more vocal in pointing out discrimination in custody rulings and alimony awards. Graphs of divorce statistics, based on United States government census information, indicated that the West continued to have the highest divorce rate, while the South and Northeast exchanged placeswith the Northeast having the lowest divorce rate in the United States.

 

Substantial efforts at divorce reform occurred in the late 1960s, focusing on economic responsibility after divorce and the viability of joint custody. Faced with grass-roots activities against the inequities and inconsistencies in divorce laws and proceedings, resistance to far-reaching reform began to crumble.

 

No-Fault Divorces

 

The concept of no-fault divorce (divorce by mutual consent) provided a means of reconciling the law as it was practiced with the codes as they were written. California's Commission on the Family recommended no-fault divorce in 1969 and called it "marital dissolution." It was signed into law by Governor Ronald Reagan, who became our first President to have been divorced. The no-fault idea was well received. Iowa was the first state to follow California's lead and within 10 years almost all states provided for some form of no-fault divorce, either as an entire concept or added to an existing list of fault grounds.

 

Divorcing couples, and the professionals working with them, hoped that no-fault, in conjunction with counseling, would eliminate adversarial divorces and the need for mutual-consent divorces to be disguised as fault divorces in court documents. Financial settlements were based on the concept of wives as full economic partners, an admirable philosophy that was not always supported by reality. Without acknowledging common inequities between men and women in societyeducation, skills, work experience, employment compensation, responsibility for child careno-fault divorce was destined to advance and increase what would become known as "the feminization of poverty" in the United States.

 

No-Fault Divorce

 

The concept of no-fault divorce (divorce by mutual consent) provided a means of reconciling the law as it was practiced with the codes as they were written. California's Commission on the Family recommended no-fault divorce in 1969 and called it "marital dissolution." It was signed into law by Governor Ronald Reagan, who became our first President to have been divorced. The no-fault idea was well received. Iowa was the first state to follow California's lead and within 10 years almost all states provided for some form of no-fault divorce, either as an entire concept or added to an existing list of fault grounds.

No-fault was promoted as a way of holding down the high cost of divorce, but it did not live up to this image. Without an outlet for expressing anger that traditional divorces afforded, wives and husbands tried to hurt each other financially. No-fault also created a new version of migratory divorce as couples began the search for states with short residency requirements and the most favorable property, alimony, and child custody awards. Divorce lawyers, therapists, and financial advisors remained safely in the financial loop as the divorce rate increased and couples battled over children, alimony, and property division.

 

The Children: Yours, Mine, or Ours?

 

No-fault did address the granting of divorce decrees by reducing the stigma associated with divorce and by making divorce more attainable. However, child custody was another matter. Through the sensitive issues of custody and child support, children became pawns in the divorce game. Custody disputes became the new forum for showing a spouse's shortcomings.

 

The brutal history of child and spouse abuse defies attempts to blame abusive behavior today on recent changes in family dynamics. The government historically had overlooked child and spouse abuse in deference to family authority and privacy. With a divorce in process, there was no longer a need to maintain the facade of family security and safety while hoping the behavior would change. Formerly suppressed stories of family dysfunctionalcoholism, sexual and/or physical abusebecame weapons leveled by one partner against the other. Use of this weapon became common enough to have a name, SAID (Sexual Allegations in Divorce), and to raise the question of false accusations. In the fall of 1990, both houses of the United States Congress passed a resolution recommending that custody not be given to a parent who is proven to be habitually physically or mentally abusive toward his or her spouse or child.

 

Relocation out of the city, state, or even out of the country by the custodial parentwhether to advance a career, to live with a new spouse, or out of spitebecame a volatile and relatively common occurrence. Literature distributed by agencies specializing in "lost" children indicated that kidnapping by the non-custodial parent was on the rise. The media brought stories of abducted children to public attention through radio, television, newspapers, and even movies.

 

Divorcing parents besieged their court systems with requests to "Do Something!" The Unified Child Custody Jurisdiction Act appeared in 1968, a Parent Kidnapping Act in 1980, and the Hague Convention on International Child Abduction in 1986. Custody and kidnapping acts have been adopted in some form by most of our states. Only 14 countries have signed the Hague Convention Act, the United States among them, but some other countries recognize its terms informally.

 

Uniform Marriage and Divorce Laws

 

The idea of a national marriage and divorce statute, first proposed in 1884, surfaced again in 1965. A Special Committee on Uniform Marriage and Divorce Laws, appointed by Congress, worked to revise civil codes in light of the principle of equality between the sexes. The committee, with advisers from the fields of psychiatry, religion, and social work, drafted The Uniform Marriage and Divorce Act in 1970, endorsing liberal points: mutual consent divorces, legal representation for children, support obligations by both parents, and social security numbers on marriage license applications (which laid the groundwork for support enforcement of a deserting spouse). The act, developed as a model guide for each state, favored spousal support for the wife or husband (in 1979, the Supreme Court ruled as unconstitutional alimony laws requiring payments by divorced husbands but not by divorced wives), and proposed that child custody be guided solely by the best interests of the offspring.

 

Even though the act did not receive the endorsement of all 50 states, it has been used, along with the Uniform Child Custody Jurisdiction Act of 1968, as a prototype for divorce reform to eradicate adversarial proceedings and highlight the emotional, social, and economic aspects of divorce. A national consensus did not exist on the responsibilities of the state and federal governments in the area of family and divorce policy. However, in cases lacking local precedent, judges sometimes were swayed, and continue to be swayed, by the opinions of courts in other jurisdictions that have handled similar matters.

 

During the late 1960s and early 70s, structured mediation in divorce settlements became a popular tool for addressing the emotional, financial, and legal issues involved.

 

During the late 1960s and early 70s, structured mediation in divorce settlements became a popular tool for addressing the emotional, financial, and legal issues involved. Some courts required mediation but it was and still is a personal choice made and paid for by the divorcing couple. [Mediation]

 

Bonds of Acrimony

 

The history of divorce in the United States may be charted as an upward spiral. Divorce rates continue to rise, increasing or decreasing in predictable patterns related to war and socioeconomic changes.

 

In the country's early divorces, immorality was considered the culprit and society called for punishment of the sinners. Then blame was ascribed to social problems before we circled back to individual responsibility with psychotherapy treatment proposed to create healthy people and marriages. From the beginning, we have shaken our finger at the divorce court system, claiming it does too little too late in the areas of behavioral censorship, individual freedoms, caretaking, and healing.

 

The most dramatic innovation in divorce practices was the widespread acceptance and implementation of no-fault statutes. Nonetheless, without a national divorce policy, judicial decisions remain inconsistent and contradictory and lawyers continue to be trained and paid to function as adversaries in divorce proceedings.

 

Divorce Today

 

At this point in United States history, with all due respect to the role of religion, marriage is a civil contract. Marriage is also seen as an emotional relationship and a financial partnership. Happiness is a major expectation of most people who marry in the United States. We claim that if our family life is unpleasant, we have the right to change it. As long as we expect our desires for happiness, satisfaction, and intimacy to be fulfilled within marriage, divorce is likely to be with us.

 

The divorce system is referred to as "broken," but designing the right one is no easy task. After deciding to enter the divorce pipeline, couples are more interested in the results than the process. Money is a major problemmoney to pay for the divorce itself and money for parents and children to maintain a reasonable lifestyle after the divorce decree is granted.

 

Under our present policies and procedures, divorce is widely quoted by family service professionals as the greatest single predictor of poverty for children and their mothers. Without equal opportunity and experience in the workplace, along with child care that does not jeopardize career advancement, the theoretically admirable concepts of community property and equitable distribution do not make adequate monetary provisions for most women who are awarded the day-to-day responsibility for raising the divorced couple's children.

 

Government resources have been exhausted and the media and court focus is now upon "deadbeat dads." Ability to pay child and spousal support is a major issue. Can the courts find a solution to the economic burdens of support, property division, and child custody where serial monogamy (two and even three or more subsequent marriages) is common among people of modest financial means?

 

Views on Marriage

 

At this point in United States history, with all due respect to the role of religion, marriage is a civil contract. Marriage is also seen as an emotional relationship and a financial partnership. Happiness is a major expectation of most people who marry in the United States. We claim that if our family life is unpleasant, we have the right to change it. As long as we expect our desires for happiness, satisfaction, and intimacy to be fulfilled within marriage, divorce is likely to be with us.

 

According to the United States Department of Health and Human Services, this country has the highest divorce rate in the world. Single-person and other non-married households are occurring at a faster rate than the formation of traditional families. The country also has the highest marriage and remarriage rate in the world with statistics indicating that fewer people remain single today than at any point in the country's history.

 

According to history books, divorce, single parenting, remarriage, and stepfamilies are as old as the human animal. The popular press and talk show television say that the theme for American marriage in the 1990s is for husbands and wives to respect and treat each other as independent and equal human beings. This concept has made additional changes in the counseling, mediation, and legal approach to the dynamics of marriage and divorce. Many divorcing people have been redefining what divorce personally means to them. When asked why all of her marriages failed, the forward-thinking Margaret Mead responded, "I have been married three times, and not one of them was a failure." Indeed, today divorce is perceived by many as less a mark of failure than as an opportunity for growth.

 

From Margorie Engelís "Divorce Help Sourcebook"



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