Sunday, July 24, 2011

Draconian Divorce -- New York in the 1950's

A big part of the plot of Exiled in the Sweet Land of Liberty circles around Sophie’s parents’ divorce. Exiled takes place in the 1950’s in an imaginary version of my Long Island hometown. Back in those days, divorce was very different from the no-fault, bye-it-was-nice-knowing-you system prevalent throughout the US today. And New York State had the most draconian of all divorce laws.

For those of you who don’t live in the United States and didn’t have to sit through an interminable term of what our high school teachers called “Government”, laws concerning marriage, divorce, birth control, driving, education and a lot of other things differ from state to state. That’s thanks to a quirk of the US Constitution that reserves to state governments everything not specifically mentioned in the Constitution.

In 1956, the year Exiled takes place, every state was different. Laws ranged from Nevada, where you merely had to establish six weeks residence, file a petition and get a divorce, to New York, which restricted divorce to only those who could prove the adultery of their spouse. Even then it took ages to go through the complete process to the final “Decree Nisi”, which said the marriage was officially ended and the parties could remarry.

Early New York divorce law had an interesting quirk. Until the state constitution was modified in the early 20th century, there were two routes to divorce. The one was a judicial route, in which a party could be granted divorce upon proving the infidelity of the spouse. When the law permitting this was originally proposed in 1787, it also stipulated that the adulterous party would not be permitted to remarry, but when it was actually passed two years later, that provision was dropped as too onerous.

The other route was called a parliamentary divorce. It allowed the parties to apply to the state legislature, who could then pass a special law permitting the divorce. This allowed a much broader range of grounds, but was very hard to get.

As a result, even as early as the 19th century, a large number of New Yorkers sought divorces outside the state, in what is known as “migratory” divorce. This was the route my own father took in 1946 when he split from his first wife (who was not my mother). The states preferred for divorce were those with very short residency requirements, chiefly Alabama, Nevada, Florida, Idaho and Wyoming. The wealthy often went overseas. There were divorce “mills” in Paris, Havana and Mexico.

There were domestic scandals, as well. Several times in the state’s history, divorce “rings” were exposed, in which professional “co-respondents” were paid to attest to having sex with one or the other of the parties in order to provide the necessary grounds.

Of course, in Exiled, Marta’s adultery is a proven fact. Even so, Jan needs hard evidence for court, which is why he appears to stalk her. Courts were not favorable towards women caught in adultery, by the way. Happy Murphy, who divorced her doctor husband to marry Governor Nelson Rockefeller in 1963, was forced to give up her four children by Murphy.

By 1956, citizens were clamoring for reform and a commission was created to study the divorce laws, but its limited mandate prevented it from accomplishing anything. In fact, reform was strongly blocked by the Catholic Church, which had a strong hold on the lower and more populous half of New York State. It took another ten years before the 1966 Divorce Reform Law was adopted. This law allowed for a wider range of grounds, including desertion, imprisonment, “deviant” sexual behavior and “cruel and inhuman treatment”. It also permitted “no-fault” divorce based on legal separation, which was carefully defined.

The reforms, while an improvement, were by no means equitable. In the 1960’s, the majority of women were still economically dependent on their husbands, and legislation did not guarantee a divorced woman sufficient means of support. It wasn’t until the feminist movement and further reform in 1980 that this was addressed.

Source: http://www.brandeslaw.com/grounds_for_divorce/history.htm accessed 22/8/08

8 comments:

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  2. I've been looking forward to your post. I've been researching divorce & paternity in my own state for my next novel. I knew Exiled is set in RI, and I've wanted to see what the eastern side of the country thought of divorce. More conservative, than a lot of western and southern states from your post. Iowa in 1946 wasn't as liberal as Nevada, but it certainly wasn't as harsh as New York.

    I think WWII played a big part in divorce reform. Lots of couples doing 'the world is ending so let's married' only to find out the world didn't end (in the U.S. at least) when the war was over.

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  3. Interesting thought about the effect of WW2 on divorce reform. I always credited to the sexual revolution of the sixties.

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