Divorce: A Woman's Redress?

Norma Basch. Framing American Divorce: From the Revolutionary Generation to the Victorians. Berkeley: University of California Press, 1999. xii + 237 pp. Plates, notes, and index. $29.95.

A rich literature on divorce in America has linked the late-eighteenth- and early-nineteenth-century revisions of law and the high percentage of female plaintiffs to the rising social status of women. Scholars have argued that divorce provided women with relief from marriages that did not meet their rising expectations for mutual respect and affection. However, Norma Basch provides a different perspective, arguing not that wives cast off at law cruel, adulterous, or irresponsible husbands, but rather that they sought dejure recognition of what was the defacto situation, that they had themselves already been cast aside by their husbands.

Basch offers a close look at divorce in the county court records of two contrasting jurisdictions. She selects Monroe County, Indiana, a largely rural farm community in a liberal jurisdiction that provided one of the nation's first divorce mills. She supplements these records dating from 1818 to 1870 with a sampling of post-1850 divorces from the urban county of Indianapolis. These she contrasts with evidence from cases adjudicated between 1787 and 1870 in the Supreme Court of New York County, the jurisdictional equivalent of Monroe. While Basch shows that women were indeed the primary plaintiffs in these divorce cases, she finds that they acted to legally terminate marriages already dissolved informally by husbands who had long since abandoned them to form second families and/or to pursue economic opportunity in the expanding arena of a growing geographical and commercial national landscape. What sort of remedy, she asks, did divorce provide such women?

Divorce did not provide economic relief to women whose straightened circumstances stemmed from abandonment, the misuse of marital property, or the misappropriation of gifts or earnings they had brought to their marriages. Few women in these cases asked for or received alimony. One reason for this was that husbands threatened to countersue women who sought a financial award. Countersuits threatened to complicate the formulaic narratives that women submitted as to their husbands' fault in the breakup of their marriages at a time when a simple, straightforward and uncontested story line most often ensured a successful outcome to a suit for divorce. In contested cases, a woman's moral standing, the quality of performance of her household and marital duties, and her economic sufficiency were all put into play. In some cases, just the threat to countersue prompted a negotiating strategy between husband and wife that undercut a woman's hopes for an economic settlement. Additionally, Basch finds that some husbands disposed of marital property prior to abandoning their wives or meeting them in divorce court. By so doing they reduced the resources from which any claim to alimony would have come. Divorce, then, represented not so much economic relief for women as a new independence for men.

"Aghast at the paucity of support provisions in nineteenth-century divorces," Basch asserts that the concept of separate property had far greater support in the American legal tradition than did that of communal property (p. 191). Despite the constraints of coverture, most Americans accepted the idea that the property a wife brought with her and the gifts she received during the marriage, should be returned to her upon its termination. However, the concept of alimony did not have the same broad support as that of separate property. And while separate maintenance (divorce "a mensa et thoro," separation from bed and board) was recognized (most prominently in the southern colonies) in America's heritage from the British parliamentary system of divorce by individual bill, the obligation of a husband to support his wife lost moral force once a marriage was legally terminated. ¹ And from a practical point of view, such a responsibility was difficult to enforce. Some women in Basch's sample had turned to the courts to leverage a deserting husband's...