Women and Divorce

From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book

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This Note reflects my research on women and divorce in the nineteenth century, particularly as it differed between various regions of the country.



See Babcock, Reconstructing the Person: The Case of Clara Shortridge Foltz, 12 Biography 5 (Winter 1989), reprinted in REVEALING LIVES: AUTOBIOGRAPHY, BIOGRAPHY, AND GENDER (Susan Groag Bell and Marilyn Yalom, eds.) 131, at WLH Website. There I tell the story of Foltz’s marriage and divorce based mainly on the court records. The Foltz v. Foltz divorce papers are in the archives of the San Jose Superior Court. Foltz handled many divorce cases throughout her career and had a standard lecture on marriage. She argued that when women achieved political equality there would be less strife between the sexes and less cause for divorce. Woman As Partner, S.F. CALL, November 5, 1895 is one account of this lecture.

In the nineteenth century there were widely variant state divorce laws, with the west providing the easiest access for women. The law did not recognize consensual divorce; indeed in some states only “innocent plaintiffs” were allowed to marry again. Lawrence M. Friedman, Rights of Passage; Divorce law in Historical Perspective, 63 OR. L. REV. 649, 653 (1984). Naomi Cahn, Faithless Wives and Lazy Husbands; Gender Norms in Nineteenth Century Divorce Law, 2002 U. ILL L. REV. 651 (2002) is very good on the procedures of these cases. Juries were all-male, and were advisory in most but not all places.

Contemporary articles, which Foltz is likely to have read were written in THE GOLDEN ERA, one by her friend Ella Sterling Cummins: A Series of Divorce Pictures, in THE GOLDEN ERA, February- 1884 in which she painted a picture of divorce lawyers as incompetent and/or greedy. Her husband Adley Cummins wrote on the subject of divorce that it was “scandalous, unclean, and absolutely wrong.” The Rights of Married Women in California GOLDEN ERA, August 1885 at 263. H.V. Morehouse, Divorce From a Legal Standpoint, GOLDEN ERA, June 1884. 106 (prevalent sentiment is that divorce an evil, but actually serves good purposes.)

Marriage and Divorce in the West

On marriage and divorce in the West, see Glenda Riley’s THE LIVES OF WESTERN WOMEN: BUILDING AND BREAKING FAMILIES IN THE AMERICAN WEST (1996) (examining the historical roots of the West’s high divorce rates). Riley concludes that they were caused by greater economic opportunities for Western women and notions of “individualism, change, and reform” that were part of the Western ideal. On divorce in California particularly, see ROBERT L. GRISWOLD, FAMILY AND DIVORCE IN CALIFORNIA, 1850-1890 VICTORIAN ILLUSIONS AND EVERYDAY REALITIES (1982) and Apart But Not Adrift: Wives, Divorce, and Independence in California, 1850-1890, 49 PAC. HISTORIAL REV. 2 (May 1980). Griswold illustrates that the divorce court was an “effective institution in enabling women to establish their own lives.” Even in the west, however, divorced women (but not men) were socially stigmatized in some circles. Frances Moffat relates how San Francisco’s society matriarch in the 1880s refused to allow divorced women at her dinner parties. Frances Moffat, DANCING ON THE BRINK OF THE WORLD (1977), at 72. See also Donna Schuele, Community Property Law and the Politics of Married Women’s Rights in California, WESTERN LEGAL HISTORY 7:2 (Summer 1994), 245-281, and Susan Gonda, Not A Matter of Choice: San Diego Women and Divorce 1850- 1880, 37 J. OF SAN DIEGO HIST. 195 (1991).

National Studies

For national studies, see NANCY COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000), on the importance of marriage in shaping fundamental notions of American citizenship; and HENDRIK HARTOG, MAN AND WIFE IN AMERICA: A HISTORY (2000), on the law’s impact on spousal identities and marital roles. Joanna L. Grossman reviewed Hartog’s book in 53 Stan. L. Rev 1613 (2001). For excellent general background on the range of opinions among the suffragists and their supporters, see Norma Basch, Review Essay: The Emerging Legal History of Women in the United States; Property, Divorce and the Constitution American Legal History Signs,12 J. OF WOMEN IN CULT. AND SOC. (1986), see especially citations in footnote 21.

End of the Century

Toward the end of the century, fewer divorce cases were actually contested in court though if any real property was involved, the out-of-court proceedings were very adversary. WILLIAM E. CARSON, THE MARRIAGE REVOLT A STUDY OF MARRIAGE AND DIVORCE (1915). A pioneer woman lawyer, Lelia Robinson in her book, LAW OF HUSBAND AND WIFE (1889) listed the most common grounds for divorce. Imprisonment; Drunkenness (generally, habit must have been contracted before marriage); Cruelty, Desertion, and Adultery (the only ground that was universally accepted).

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