Divorce Records

Today, one in every three marriages ends in divorce. Divorce was also common in early America as the colonies reacted against the severely restrictive divorce tradition inherited from England. Divorce in England at the time of the founding of America was expensive, time-consuming, against Anglican law, and frowned upon socially. The only cause recognized was adultery. Three types of divorce existed in England in the early modern period:

1. a trial before an ecclesiastical court for a divorce from “bed and board” (legal separation), the legal right to live apart as though single but not the right to marry again (an oath or bond promising the parties would not remarry was filed)
2. a suit for damages in a civil court against the spouse’s lover
3. a petition presented to the House of Lords for a hearing which ended with the grant of an absolute divorce—the dissolution of a legally valid marriage leaving both parties free to remarry.

Before 1715, the House of Lords granted only five divorces in the entire British Empire. From 1715 to 1775, sixty were granted; from 1776 to 1800, seventy-four; and from 1800 to 1850, ninety. Only four of these divorces were granted to women, who had to prove extreme cruelty as well as adultery.

A less expensive but equally elaborate way to dissolve a marriage was to obtain an annulment from the Church of England, which declared the marriage void from the beginning because undue force or fraud had been used or the parties were too closely related by blood, were underage, or one or both of the parties had been under contract to someone else. Children born to an annulled union were declared illegitimate and could not inherit from their parents unless the church made special exception. Still, many annulments were sought.

American colonists were not anxious to establish ecclesiastical courts in the New World. Divorce law in the United States is almost entirely derived from statute. A study of the system the colonists knew at the time they left England, which thus formed the basis of divorce law in all the colonies, is Lawrence Stone, Road to Divorce: England, 1530–1987; Uncertain Unions: Marriage in England, 1660–1753; and Broken Lives: Separation and Divorce in England, 1660–1857, 3 vols. (Oxford Press, 1990–93).

In New England, where marriage was considered a civil contract, courts granted civil divorces from early times. In the middle colonies—New York, New Jersey, and Pennsylvania—divorces were handled either by the governor and his council or by petition to the Assembly. Adultery or prolonged desertion were the only grounds recognized. In the South, where the Church of England had greater influence, few civil divorce laws were in effect until after the American Revolution. A married couple could separate by mutual consent, apply for legal recognition of their separation, and petition for alimony. The parties were usually not free to marry again. In all of the original colonies and several of the states, divorce by legislative petition was allowed. As petitions became numerous, however, overburdened legislatures gave this judicial function to the regular courts.

Profound differences still exist from one state to another. Each state determines which court will handle divorce cases—superior court, equity court, probate court, or family or domestic court. The procedure basically allows the judge to decide what is just and equitable in each case within the limits set by the law. Because of this lack of uniformity, a researcher must study the development of divorce in each relevant jurisdiction.

Divorce Records

Divorce is a court action recorded in court records: dockets that list plaintiff and defendant and the specific term or day of the court; minute books, which record court judgments and case descriptions (often in terse legal language); and case files, which provide affidavits, lists of children with their ages, property inventories, and other data. The date and place of marriage, ages or dates of birth of the couple, places of birth, and the grounds for the divorce are usually included. In addition, the record may list the names of other family members, since the children may be in the custody of grandparents, uncles, or close family friends.

Divorce records may be recorded in volumes with the regular court cases, in separate volumes reserved for divorce cases, or in a series of separate volumes for each kind of record.

Early Utah quickly gained the reputation of being a divorce “mecca,” with its broad grounds for divorce, inexpensive court procedures, and lack of residence requirements. When out-of-state people began arriving to take advantage of this situation, Utah stiffened its residency requirements and lengthened the waiting period.

If the location of the defendant had been known, he could have been served with papers by a court official. Instead, the notice was published in the newspapers. During the colonial period, notices were posted on the town bulletin board at the courthouse, church, or city hall. News notices often ran as long as forty weeks. As communications improved, the time was gradually decreased to three to four weeks.

Some states require a certificate of divorce, with a copy filed at the state bureau of vital statistics. New Hampshire has issued certificates since 1880; other states did not begin this practice until well into the 1930s. Court records are public records, but those issued in the past fifty years are often protected by privacy legislation, and the permission of the divorced party may be required to get the data. Some states do not have certificates on file but can verify dates and refer queries to the court that has the record.

Locating Divorce Records

Divorce records can be found in such diverse places as a well-lighted archive search room, a basement storage vault, or a warehouse.

Nineteenth-century divorces and some earlier divorces will most often be found in county or circuit courts or their counterparts. Divorces filed in the years immediately following statehood may be in the proceedings of the state’s legislative body. Legislative divorces continued to be granted in some areas long after the same powers were granted to the regular courts, so researchers should check the records of assembly and council as well as the court records. Printed volumes can serve as name indexes to the original files.

Divorces filed before statehood may be found in territorial or colonial legislative records. In addition to legislative or court files, there are other sources where early divorces are recorded. Colonial assemblies were required to submit copies of every law passed to the British government for ratification or veto. Private acts for divorce were included. Sometimes acts of divorce were disallowed by the crown. Because colonial laws were valid and legal until they were disallowed, couples who may even have remarried were sometimes ordered back together after a royal review period that sometimes lasted three to six years. By 1773, the increase in divorces caused alarm in England, and governors were ordered not to approve any further divorce bills. Hence, there were fewer divorces until after the American Revolution.

Acts submitted to the crown are recorded in the Colonial Office volumes, available in print in large research libraries. Each volume is individually indexed for all documents abstracted or calendared. Originals are in the Public Record Office, Ruskin Ave., Kew, Richmond, Surrey, TW94DU, UK.

Local newspapers publish legal notices and also lists of divorces granted. Early issues carried notices placed by husbands to warn local tradesmen that they would no longer be responsible for debts incurred by their ex-wives. On occasion, wives also placed notices of freedom.

The disposition of property in any divorce case is determined by state statute or by equitable decision of the court. Alimony is the allowance a woman is entitled to receive from her husband during separation and after divorce. The amount is usually set by the court based on the financial circumstances of the husband and the needs of the wife. In rare instances, a husband may be granted alimony from his wife. Alimony can be paid in monthly or annual installments or as a single lump sum, and the obligation usually ends when the spouse remarries. In some jurisdictions, a wife guilty of adultery is denied alimony; in others she receives payment regardless of such circumstances.

In South Carolina, which did not recognize divorce, or states that severely limited the grounds for divorce, courts accepted petitions for alimony to provide for the needs of family members who wished to live apart. In areas in which there were many Shakers, for example, courts addressed the needs of spouses abandoned when the other spouse joined the celibate group. A woman was given a share of the husband’s property and custody of the children. No divorce was granted, and the parties were still legally married, although living apart.

In most jurisdictions, until recently, if the wife was not guilty of adultery, she was entitled to her full dower and one-third of her husband’s property at his death, even though a divorce had taken place. Some jurisdictions subtracted from the dower the amount already received in alimony. A husband could claim, by right of curtesy, one-third of the wife’s property.

Courts outline provisions for children of dissolved marriages at the time the divorce is granted. The law generally stipulates that the father must help pay for the upbringing of the children. The amount is determined by the court, based upon the earning ability of the father and the number of children. In cases of non-payment, the court can order arrears to be made and enforce its decrees, even to the point of garnishing wages if necessary.

The custody of children is usually awarded based upon individual circumstances, although some jurisdictions today permit children above a certain age (eight to fourteen) to choose which parent they wish to live with. Visiting rights may be granted or denied to the other spouse at the discretion of the court.

Divorce Meccas

Certain states (or colonies) gained reputations for easy divorce. Stringent laws in one area led to migration into areas where divorces were easier to obtain. Pennsylvania and New England attracted New Yorkers. Ashtabula County in Ohio, which was readily accessible from New York, Pennsylvania, and Ontario, Canada, granted many divorces to non-Ohio residents. Chicago granted four hundred divorces in 1868 alone. Utah Territory had no residency requirements until 1878, and even today Utah requires only three months’ residency. Indiana had no residency requirements until 1859, and the residency requirements in other states vary widely: twenty-nine states require one year; Delaware, New Jersey, Rhode Island, Tennessee, and Arkansas require two years; Connecticut and Massachusetts require three years; North Carolina and Virginia require six months; Utah three months; Arkansas, Florida, Idaho, Wyoming, and Nevada seem to compete to lower their requirements to attract the divorce trade. Louisiana, New York, Wisconsin, and South Carolina have no specific residency requirement, but the grounds are more stringent in those states.

After the Civil War, the frontier was often the most practical resolution to a bad marriage. In earlier periods this had been true of immigration to the New World as well. A ride into the sunset by one or both parties was easier and less expensive than petitioning for a legislative divorce. Numerous examples of runaway spouses can be found among the advertisements in early newspapers, a bonus for genealogists.