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Divorce as a court action was introduced to the American colonies by Puritan settlers during the early 1600s. In 1620, Plymouth officials viewed marriage as a civil rather than an ecclesiastical matter. This recognition opened the door to the possibility of civil divorce. At least nine divorces were granted in Plymouth prior to 1691, when Plymouth and Massachusetts Bay were united into a single colony.
Records indicate the first colonial American divorce, however, was granted not in Plymouth but in Massachusetts Bay. In 1639, James Luxford's wife was able to show evidence that James already had a wife. The court seized Luxford's property and fined and punished him.
Divorce was not the tradition in the England the early colonists had left. At the time of the founding of America, an English divorce was rare, expensive, time-consuming, against Anglican law, and frowned upon socially. Lawrence Friedman states, "Henry VIII had gotten a divorce; but ordinary Englishmen had no such privilege. The very wealthy might squeeze a rare private bill of divorce out of Parliament. Between 1800 and 1836 there were, on the average, three of these a year. For the rest, unhappy husbands and wives had to be satisfied with annulment (no easy matter), or divorce from bed and board (a mensa et thoro), a form of legal separation. Separated couples had no right to remarry.
A study of the English system that formed the basis of divorce law in all the colonies is Lawrence Stone's three volumes: Road to Divorce: England, 1530-1987; Uncertain Unions: Marriage in England, 1660-1753; and Broken Lives: Separation and Divorce in England, 1660-1857.
During the American colonial period, the extent and type of divorce differed from colony to colony. In New England, where marriage was considered a civil contract, courts granted civil divorces from early times. Grounds included adultery, abuse, neglect, and desertion by the husband. In other colonies, if divorce was allowed at all, grounds were limited to dissolving a marriage that was within the prohibited degrees of consanguinity or affinity.
In the middle or border 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. New York did grant absolute divorces (a vinculo matrimonii) prior to 1675, thereafter only a mensa et thoro divorces. Penn's laws of 1682 gave Pennsylvania spouses the right to a "Bill of Divorcement" if their marriage partner was convicted of adultery.
The situation was restrictive in the southern colonies, where most followed the English tradition of no absolute divorce and only rare instances of divorce from bed and board. Here, the Church of England had greater influence, thus few civil divorce laws were in effect until after the American Revolution. Eighteenth-century North Carolina law, for example, did not provide for absolute divorce, and, although legal in the nineteenth century, non-absolute divorce was rare. The few separations that were granted were in the form of orders of the General Court for separate maintenance, often called alimony. Records of these cases will be at the North Carolina State Archives among the Legislative Papers.
In contrast, prior to its becoming a part of the United States in 1803, Louisiana's Superior Council regularly granted divorces of bed and board as shown by surviving French colonial records. These were almost always based on the charge of cruelty.
Following the American Revolution, divorce laws and attitudes towards divorce generally broadened, although regional differences remained strong. Divorce in the South continued to be rare. But in all of the original colonies and most of the other states divorce by legislative petition was allowed. This "legislative" or "private act" divorce required a petitioner's case to be heard before either the territorial or state legislature.
As these petitions increased in number, overburdened legislatures gave the judicial function to the regular courts. Maryland provides an example. By the mid-1830s, the Maryland legislature was granting slightly more than thirty divorces a year. By 1842, the number of divorces sought was so great that primary jurisdiction was transferred to the courts. Nine years later, the Maryland Constitution of 1851 prohibited legislative divorce entirely.
Profound differences have always existed from one state to another. Each state determines when legislative divorce ceases and goes to local courts and then 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. Studies such as Thomas E. Buckley's The Great Catastrophe of My Life: Divorce in the Old Dominion, which examines the 471 surviving divorce petitions to the Virginia legislature for the years 1786 to 1851, is one example of a regional work that would prove useful to Virginia researchers. (See the suggested readings on divorce in the references section at the end of this chapter.)
The divorce rate escalated after the Civil War. In some areas of the Midwest and West, legal tolerance of divorce ranged from slightly permissive to wide open. In Iowa, between 1870 and 1880 the divorce rate jumped from forty-nine to sixty per hundred thousand of population. Factors that may have contributed to this were a liberalizing of religious beliefs, varied ethnic and racial values, and disruptively high rates of migration.
Throughout the latter half of the nineteenth century and well into the twentieth century, only one state defied the rising numbers. The laws of South Carolina, despite an experiment with a divorce clause from 1868 to 1878 (during which time not one divorce was granted), did not allow for an absolute divorce until the 1949 Divorce Act went into effect. Only then was divorce allowed and jurisdiction placed in the Court of Common Pleas.
Divorce Records and Their Location
Divorce records will be found in colonial court records and territorial and state legislatures, as well as in county, state, and territorial courts. Pre-Revolutionary divorces may be found in colonial legislative records. Copies of the private acts for divorce may be 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, TW9 4DU, UK.
Multivolume sets of selected abstracts for most of the original colonies have been printed in archive series at government expense and can be found in most large research libraries throughout the United States. Abstracts should be used as indexes to the originals.
Divorces filed in the years immediately before and following statehood may be in the proceedings of the territory or the state's legislative body. The granting of a divorce was usually recorded as a Private Act in the legislative proceedings. There should also be evidence of the divorce, such as details of settlement, at the county of residence of the plaintiff. 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. Delaware was the last holdout of legislative divorce, which survived in that state until 1897. Legislative divorces will appear in printed volumes that can serve as name indexes to the original files.
Most nineteenth-century and some earlier divorces will be found in county or circuit courts or their counterparts in the county where filing occurred. These will be in civil court records that are usually well indexed. Divorce records may be recorded in volumes with the regular court cases or in separate volumes reserved for divorce cases. The index provides quick identification of a divorce because the plaintiff and defendant will carry the same surname.
Some indexes and abstracts are in print (a few are listed in the reference section), others are online. Various indexes to local civil case files that contain divorce are online, including those for the Utah counties of Cache (1860-87), Davis (1875-86), Salt Lake (1852-87), and Weber (1852-87).
The manner of entry in court books or in a case file or case packet parallels the record-keeping of other civil cases. A case file may 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. Divorce records may list the names of other family members, since the children may be in the custody of grandparents, uncles, or close family friends.
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 might be 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.
A researcher may find the first indication of a divorce in local newspapers. Early newspapers often 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. This pair of entries, is from in the Vermont Gazette:
- January 7, 1796: Whereas my husband, Enoch Darling, has at sundry times used me in an improper and cruel a manner as to destroy my happiness and endanger my life, and whereas he has not provided for me as a husband ought, but expended his time and money unadvisedly, at taverns, to the detriment of myself and his family, I notify the public that I am obligated to leave him and shall henceforth pay no debts of his contracting. Phebe Darling, alias Phebe Adams, Bennington.
- January 7, 1796: Phebe, my wife has left my bed and board without just cause or provocation. I will not pay debts of her contracting. Enoch Darling, Bennington.
Newspapers also carried legal notices to inform missing parties and creditors of the pending case. (During the colonial period, notices were posted on the town bulletin board at the courthouse, church, or city hall). If the location of a defendant was known, he would be served with papers by a court official. If the whereabouts were unknown, a notice was published in the newspapers. Such news notices often ran as long as forty weeks. As communications improved, the time was gradually decreased to three to four weeks. Some newspapers, particularly the urban press, would publish lists of divorces granted.
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.
According to South Carolina State Archives, Before 1868, a legislative act or the district courts of equity could grant divorce or separate maintenance but did so only rarely. From 1868 to 1878, when divorce could be obtained in the courts of common pleas only 163 divorces were granted. Divorce was not legalized until 1950.
In South Carolina, 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 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.
As they do today, courts outlined provisions for children of dissolved marriages at the time the divorce was granted. In the 1832 divorce of Patrick and Susannah Martin in Gibson County, Indiana, the children Jane and Martha went to the father while the mother received "the babe, two beds, two colts, and one cow." 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.
The law may have stipulated that the father must help pay for the upbringing of the children. The amount was determined by the court, based upon the earning ability of the father and the number of children. Few legal remedies were available for cases of non-payment.
Most divorce files prior to the mid-twentieth century are open to researchers. Some modern courts seal all or part of the records of divorce proceedings, and they are available only to the parties.
Certain states (or counties or colonies) gained reputations for easy divorce. Stringent laws in one state led to migration into states and cities where divorces were easier to obtain. 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. Indiana had no residency requirements until 1859 and Utah Territory not until 1878.
Early Utah quickly gained the reputation of being a divorce "mecca," with its broad grounds for divorce, inexpensive court procedures, and lack of residency requirements. Thus, Christina Anderson, in 1866 Weber County, could obtain an divorce for abuse and maltreatment, grounds that were not allowed in eastern courts. When out-of-state people began arriving to take advantage of this situation, Utah stiffened its residency requirements and lengthened the waiting period.
About 1890, the city of Sioux Falls, South Dakota, became the newest divorce mecca in the United States. As the hub of major railroad lines, the city, on the eastern border, featured easy access for divorce seekers. An abundance of attorneys and courtrooms and a thriving night life perpetuated its image as a "rollicking and extremely lenient divorce colony." The short residency requirement of just ninety days in the county where filed and the practice of notification by publication, not delivery, meant the defendant need not respond in order for a divorce to be granted.
Western states, in particular, gained notoriety for their liberal divorce laws. There the divorce rate rose faster than in northeastern or southern states, even when discounting migratory divorces. Two Census Bureau studies conducted 1867-1887 and 1887-1906, showed that the most common single ground for divorce in the Western states was desertion. A high percent of these were by females who left husbands behind when they headed west, perhaps because leaving was easier and less expensive than petitioning for a divorce. But most divorces due to desertions were filed by males. A wife who refused to join her husband in the West, choosing instead to remain in their former home in the East, was considered a deserter in jurisdictions whose laws stated that a husband's domicile constituted the family domicile.
This extreme rise in numbers was in part responsible for movements in the latter part of the nineteenth century to regularize and control divorce in the entire United States. But it was difficult to change state statutes, and, even when done, enforcement was defective. Divorce would continue as would the debate and controversy.
- ↑ Glenda Riley, Divorce: An American Tradition (New York: Oxford University Press, 1991), 12.
- ↑ Lawrence M. Friedman, History of American Law, 3rd ed. (New York: Touchstone, 2005), 142.
- ↑ 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, England: Oxford University Press, 1990–93).
- ↑ George Ryskamp, “Common-Law Concepts for the Genealogist: Marriage, Divorce, and Coverture,” National Genealogical Society Quarterly 83 (September 1995): 165–79.
- ↑ Ibid., 173.
- ↑ Friedman, A History of American Law, 142.
- ↑ Raymond A. Winslow Jr., “County Records,” in North Carolina Research: Genealogy & Local History, ed. Helen F. M. Leary, rev. ed. (Raleigh: North Carolina Genealogical Society, 1996).
- ↑ Riley, Divorce, 30.
- ↑ James Van Ness, “On Untieing the Knot: The Maryland Legislature and Divorce Petitions,” Maryland Historical Magazine 67 (1972): 171–75.
- ↑ Thomas E. Buckley, The Great Catastrophe of My Life: Divorce in the Old Dominion (Chapel Hill: University of North Carolina Press, 2002).
- ↑ Glenda Riley, The Female Frontier: A Comparative View of Women on the Prairie and the Plains (Lawrence: University Press of Kansas, 1988), 22.
- ↑ Marsha Hoffman Rising, Vermont Newspaper Abstracts 1783–1816 (Boston: New England Historic Genealogical Society, 2001), 115.
- ↑ Gibson County (Indiana) Circuit Court, civil order book D, August 1829–February 1838, p 113.
- ↑ The Division of State Archives website at http://archives.utah.gov/inventories-ac.htm lists this the Christina Anderson v. Peter Anderson divorce in the Weber County (Utah) Probate Court, Civil and Criminal case files (series 1593), entry 117.
- ↑ Riley, Divorce, 99.
- ↑ Riley, Divorce, 68.