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  • Divorce in the Desert: Unhappy Marriages and Female Autonomy in Arizona, 1870–1930

While many believe that frequent divorces are a new phenomenon in our society, divorces were not uncommon during Arizona’s territorial period. In 1900, the Arizona Territory ranked eleventh highest in the nation, per capita, in the number of divorces.1 Although divorce rates were rising all over the nation during this time, divorce occurred much more often in the West, where the population’s mobility may have contributed to marital instability. In the late nineteenth and early twentieth centuries, as Americans viewed these developments, many were concerned and believed that increasing divorce rates threatened traditional ideals. On the other hand, a few argued that divorce could provide a positive outcome for those in unhappy marriages. In addition, some women’s rights advocates stated that divorce should be available to free wives from alcoholic or abusive husbands.2

Territorial Arizona’s first legal code, the Howell Code, established the legal framework for divorce in 1863, and it was modified [End Page 279] over the years. From 1864 to 1886, Arizonans could obtain a divorce through a territorial district court or the territorial legislature. After 1886, only district courts granted divorces.3 This article examines divorce laws and causes of divorce, those granted by the territorial legislature, as well as district courts, and the experiences of divorced women. Women petitioned for and obtained two-thirds of all divorces. Although some divorced women were convicted of committing adultery and ended up in prison and some women of color lost property in divorce due to miscegenation laws, this examination of divorced women’s experiences reveals that divorce provided a favorable option for many Arizona women. In fact, some divorced women went on to work in various fields or remarry after leaving an unsatisfactory marriage. As women’s rights leaders had argued, access to divorce could lead to greater female autonomy.4

Unless a person of some prominence divorced, it is difficult to learn much about the conditions surrounding divorces—especially those approved by the territorial legislature. The divorce of Governor Anson Safford and a few other sensational divorces received some attention in local newspapers, while other legislative divorces went unmentioned. Although uncovering the stories and struggles of divorced women in territorial and early statehood Arizona can be difficult, it is not impossible. In fact, a sampling of two hundred women who lived in Arizona during the territorial and early-statehood periods reveals that many women sought divorce to end unhappy marriages.5 Approximately 16.5 percent of this sample divorced at some point in their lives. These women obtained divorces through territorial and state district courts, not through the territorial legislature. The women in this sample came from a broad spectrum of the population, including many homemakers, ranch women, teachers, community builders, professional women, artists, and politicians.6 [End Page 280]

The territorial legislature established divorce law through the Howell Code, which began by stating that marriages prohibited by law were considered void, and in those circumstances, no legal procedure or divorce was necessary. Some types of marriages were prohibited, including those between a man and woman when one of the parties still had a spouse living; when one of the parties was underage; when either of the parties was “insane or an idiot”; or when the marriage was between a white person and “a negro.” In addition, when either party was imprisoned for life, the marriage was automatically dissolved.7 In 1865, the territorial legislature further prohibited marriages between a white person and an American Indian or person of Chinese descent.8

The Howell Code allowed divorces under certain circumstances, including for adultery; the physical incompetence of one of the parties; imprisonment of a husband or wife for three years or more; when either party deserted the other for at least two years; when a spouse was a habitual drunkard; or due to extreme cruelty. In addition, divorces were granted due to the willful neglect of the husband to provide for the wife. The court could make decisions regarding minor children of divorced parties and alter its decree in the future, based on the complaints of either parent.9 These grounds for divorce were like those in most other states and territories. However, according to historical geographer Mary Somerville Jones, the West was unique because officials tended to allow for broad interpretations of various divorce statutes and there were short residency requirements in many western states and territories.10

At first, the Howell Code required that a divorce plaintiff be a [End Page 281] bona fide resident of the territory of Arizona for six months before instituting a suit.11 In 1901, the territorial legislature revised this statute, requiring that divorce plaintiffs live in the Arizona Territory for a year before initiating a divorce and in the county where it was initiated for six months prior to court action.12 Other western states, such as California, Nevada, and Montana, also initially required only a six-month residency before initiating a divorce. The mobility of the frontier population may have led to shorter residency requirements. In addition, the six-month residency requirement may have made the new territories and states attractive to potential residents who were moving to the region to end unhappy marriages.13

Arizona territorial law also discussed how property would be divided. The court system was empowered to decide how much property the wife should retain following the dissolution of her marriage, and judges could appoint someone to administer the divorcee’s property.14 The law in this area displayed the gender ideal that women had to be cared for either by a husband or the court. There was no discussion concerning the court’s control of the property allocated to the husband.15

When a marriage was dissolved because the husband was adulterous, habitually drunk, or imprisoned for three years or more, the wife was entitled to her dower of his lands in the same manner [End Page 282] as if he were dead. This dower entitled her to one-third or one-half of his property. She would not get this property for any other cause of divorce, such as cruelty or desertion. Thus, husbands who were adulterous, imprisoned, or habitual drunks lost more of their property in divorce.16

Initially, wives who committed adultery were treated more severely than husbands under the first Howell Code. It specified that they would lose all of the community property and part of their personal property if they were adulterous. However, this section of the code was only in effect for a short time. The following year, the territorial legislature changed the law so that whichever party was guilty of adultery or extreme cruelty would be allocated the part of community property deemed just by the court. In other words, it did not specify that wives were to be punished more than husbands, as the earlier law did. By 1871, court cases had firmly established community-property law, and the wife did not lose all of her property if she were divorced due to adultery.17

Territorial divorce laws discussed alimony. If the husband did not provide the court-ordered alimony, the court could take his personal estate and pay the alimony. However, during the nineteenth century, alimony was rarely granted, and when it was decreed by the court, the amount was usually small.18 Judges appeared to believe that if a wife had worked outside the home before a divorce, she would continue to do so after it, while those who were unemployed, had to find paying work. In addition, if a wife were determined to be at fault in the divorce, alimony was highly unlikely.19

Arizona territorial district courts heard petitions for divorce and granted them, as did the territorial legislature from 1864 to the 1880s.20 The first territorial legislators stated that because no [End Page 283] divorce laws existed in the territory, it was necessary for the legislature to grant the divorces. This legislature did approve the Howell Code, which contained divorce laws, in November, but the code did not go into effect until the following year. The Arizona territorial legislature wasted no time in granting its first divorce during the first legislative session. Legislator John G. Capron divorced his wife, Sara (Rosser) Capron. This divorce was granted as the second act of the session on October 13, 1864, because the legislators believed Capron had married Sarah Rosser after being “induced by fraudulent concealment of criminal facts.” Without revealing what criminal facts had been concealed, the legislative record stated that the “strongest legal causes exist for annulling said marriage.” Another legislative divorce was granted to Elliott Coues, an assistant army surgeon stationed at Fort Whipple, from his wife Sarah A. Richardson; they had married just a few months before the divorce.21 During this first session, legislators also approved legislation divorcing Mary Catharine Mounce from Absalom Mounce, without providing an explanation for this divorce.22

In 1867, the Arizona territorial legislature granted one divorce.23 During the next few sessions, the legislature did not issue a divorce, but in 1871, the territorial legislature granted three divorces.24 In 1873, Territorial Governor Anson Safford received a legislative divorce from his wife, Jennie Tracy. They had married in 1869 but had not lived together for many months; Jennie Safford resided in California with her family during most of the marriage, while Governor Safford lived and worked in Arizona Territory. She gave birth to a baby in 1870, and the child died the following year. During most of this difficult time, Governor Safford was busy in Arizona, and the two spent just a few months together. Jennie initiated a divorce in San Diego in December 1872, alleging that Anson Safford had committed adultery and concealed his syphilis from her, prior to their marriage. The court ordered [End Page 284] that copies of the complaint be mailed to Anson Safford, but the case was dropped; the charges were unproven. Jennie went to San Francisco, and Anson Safford petitioned the Arizona territorial legislature for divorce. The legislature granted the divorce within six days. After Jennie received word of the divorce, she remarried. Former Governor Safford remarried six years later.25 This case illustrates the fluidity of marriage and divorce in early Arizona. Jennie appeared to dislike living in Tucson, so she lived in California. She did not abandon Anson Safford, but she did not reside with him where he worked. Although the union produced a baby, it was neither a long nor a happy marriage.

During some years, such as 1875, the legislature granted no divorces, but in 1877, the body divorced ten couples, who were from Yavapai, Pima, and Pinal counties, with the majority coming from Pima County.26 The number of divorces granted by the territorial legislature increased to seventeen in 1879. These divorces became law through the Omnibus Divorce Bill, which divorced several couples through one bill.27 (Usually each couple would be divorced through a separate bill.) After news of this divorce bill traveled west, one California editor criticized the Arizona territorial legislature. An editorial from the San Francisco Bulletin stated: “It appears conceded that the Legislature of Arizona is perpetuating many abuses by passing divorce laws.” The author, who advocated that divorces be granted through courts and not by the legislature, believed the U.S. Congress should end the practice, which was almost as evil as polygamy according to the editorial: “Congress cannot too early take hold of this matter, and make the law concerning divorce in the Territories assimilate with the practice in all the states of the Union.”28

The editor of the Arizona Weekly Miner in Prescott defended the practice of legislative divorce: “Several of the parties interested [End Page 285] in securing the passage of the bill which separated them from a beastly husband or wanton, abandoned profligate wife are personally known to us, and we believe the action of our Legislature in fixing up this Omnibus Divorce Law, which seems to be so odious to our California neighbors and making one job of it and a short one at that, was one of the best acts in the whole session.”29

There were important differences between legislative divorces and those granted by a district court. When a party petitioned for divorce through a district court, he or she had to state a cause for the divorce. The Howell Code allowed divorce for specific reasons, such as intemperance, adultery, and cruelty. It does not appear that a specific cause had to be given for a legislative divorce. Territorial legislative records rarely discussed the reasons for legislative divorces, while the cause of a divorce granted through district court was typically stated in court records. In addition, territorial district courts attempted to contact the spouse of the person who petitioned for divorce, so that he or she could be represented in court. This was not the case with legislative divorces. The person who desired a divorce was represented by a legislator, and the spouse who would be divorced was not asked to appear. Some divorced spouses learned of their divorce only after it was completed. Legislative divorces were easier to acquire because one did not have to prove allegations in a court of law against an absent spouse. However, the person desiring a divorce did have to convince a legislator to place the request for divorce before the legislature. This probably dissuaded some from pursuing legislative divorces.

The critics of legislative divorces made some valid points. When men who had left wives at home in another state or territory initiated legislative divorces, it usually harmed the abandoned women. It is difficult to ascertain if wives also divorced husbands in this manner because the sources are incomplete, but it appears that husbands used legislative divorces for this purpose more often than wives. Some newspaper editors criticized legislative divorces because both spouses were not granted a hearing. In February 1879, after the passage of the Omnibus Divorce Bill, the Yuma Exposition editor argued: “As to the power of our legislature to grant divorces we never had but one opinion; and that is: that such an assumption of power by any legislative body in these United [End Page 286] States is unconstitutional, and emphatically so when the divorce is granted without hearing both parties.”30

Among the divorces granted by the Arizona territorial legislature in 1879, there were two that drew negative attention in Arizona newspapers. John J. Gosper, secretary to Governor John C. Frémont, divorced his wife, Waitie, who was then living in Nebraska. Gosper had served as secretary of state in Nebraska before moving to Arizona Territory. Waitie, who was ten years Gosper’s senior, had been his nurse prior to their marriage in 1866. She was widowed and had a son. Gosper left his wife in Nebraska and then was able to secure a divorce through the Arizona territorial legislature. After his divorce in 1881, Gosper married Sarah Louisa Watson, who was operating a millinery shop in Prescott, but this second marriage was quite short. The couple moved to California, and it appears that they separated. Sarah worked in a restaurant in San Francisco for a time before returning to Prescott, where she assumed her maiden name.31

Like John Gosper, Dr. William F. Smith left a wife at home, traveled to Arizona, and secured a legislative divorce. Smith’s wife, Eudora, lived in California, and he relocated to Yuma in order to obtain the divorce. At this time, the law required a six-month residency period in the territory, but it is unclear whether or not Smith lived in Arizona for six months prior to his divorce. It did become known after the divorce that Smith had been spending time with a young woman named Annie Carpenter; various sensational circumstances concerning Smith’s divorce were described in local newspapers. Miss Carpenter was the niece of the wife of Thomas Fitch, the territory’s speaker of the House. Fitch had assisted in the passage of the Omnibus Divorce Bill, although Yuma legislator Samuel Purdy Jr. proposed Smith’s divorce to the legislature. Dr. Smith married Annie Carpenter on February 9, 1879, soon after the legislature granted him a divorce, but the couple quickly experienced difficulties.32

Shortly after their wedding, Eudora Smith brought a bigamy and adultery suit against William, challenging the legality of the [End Page 287] divorce granted by the Arizona territorial legislature. Smith was fortunate in that she had the financial means to challenge her husband’s legislative divorce. Most likely, many others lacked the wherewithal to do so. William Smith was charged with adultery in the City Criminal Court in San Francisco. Testimony discussed Smith’s romantic involvement with Annie Carpenter, which had been going on for some time before the divorce33 During the bigamy trial, Smith testified that he was being pushed and pulled by both Annie and Eudora and that “between the two women he had been driven almost insane.”34

This case continued to be covered in the Weekly Arizona Miner, which reported in March 1879 that Thomas Fitch had received a subpoena to testify in a bigamy case against William Smith. The March 14, 1879, article, which reads like a soap opera, discussed Fitch’s knowledge of the relationship between Smith and Carpenter. According to Fitch, he had tried to end their relationship but had failed.35

The grand jury indicted Smith of bigamy in July 1879. He was tried in California’s Fourth District Court in October of that year. At the time, his divorce and subsequent marriage to Annie Carpenter were declared null and void. During the trial, Eudora Smith testified that her husband had procured a divorce in Arizona without her knowledge or consent. The presiding judge declared, ”Dr. Smith never had been a resident of Arizona, and the Legislature of that Territory had never acquired jurisdiction between persons who are, and have ever been citizens of this state, could not, any more than any other contract, be set aside by any other State or Territory.” He concluded that Eudora Smith was still the lawful wife of Dr. Smith.36 After the trial, Smith apparently did not live with either Eudora or Annie. In the 1880 census, he claimed that he was a widower.37 [End Page 288]

These records clearly demonstrate that not all divorces granted by the Arizona territorial legislature were deemed legal by other states. California’s Fourth District Court found against Dr. Smith because he was not an actual resident of Arizona and the territorial legislature of Arizona did not have jurisdiction over a marriage performed in California. Most likely, he had not met the requirement of a six-month residency before initiating the divorce; indeed, he may have been in the territory for only a week or two, as reported by the prosecution.

As Eudora Smith testified, legislative divorces were issued without notifying the spouse who was being divorced. This also happened in other territories and states. In 1886, the U.S. Congress passed a law prohibiting legislative divorces in territories. Consequently, after 1886, divorces in Arizona Territory were only available from district courts.38 In 1888, the U.S. Supreme Court ruled in Maynard v. Hill that legislative divorces posed “grave constitutional problems” but still upheld those that had already been granted. At the same time, the court stated that “it was important only that America cease the practice.”39

In fluid frontier areas, abandonment was a common cause of divorce, and district courts often heard divorce petitions based on this. During the nineteenth century, it was not uncommon for men to move west to a new state or territory without their wives and families. According to historians Linda Peavy and Ursula Smith, “In a sense, the westward movement legitimized abandonment.”40 Wives who were left behind lacked the status of unmarried women or widows. They often did not have the financial resources needed to carry on family affairs; their legal status was still tied to their husbands, and marrying again raised questions. Was their spouse really gone or would he be back?

The law in Arizona and many other states and territories allowed an abandoned spouse to remarry if one’s spouse was absent for two successive years and their residence was unknown. It was permissible for the abandoned spouse to remarry without securing a divorce, and their new marriage was considered “as valid as if [End Page 289] such a former husband or wife were dead.”41 Although it was not necessary for a man or woman to petition for divorce if they were abandoned, many still did so.

Confusion could occur when one spouse moved away and did not communicate with a wife or husband back home. Jacob Miller came to Arizona Territory to prospect for gold in 1863, leaving his wife, Jane, in Illinois. After living in Arizona for ten years, he returned home to find that his wife had remarried because she believed he was dead. Jacob then convinced his children to leave with him and move to the Arizona Territory. Like so many others, Jacob left a wife back home and began a new life. Jane Miller, like many other wives whose husbands left them back east, thought that she had been abandoned or that her husband had died.

Believing that one had been deserted was a fairly common reason for wives to divorce. According to a U.S. government study, Marriage and Divorce in the United States, 1867 to 1886, women in the Arizona Territory, like women throughout the United States, most often sought divorces due to desertion or cruelty.42

While men moving west sometimes deserted their wives back home, women also deserted men. Historian Glenda Riley found that desertion by both men and women was especially high in the West.43 In Arizona Territory, desertion was the leading cause of divorces initiated by men. Flora Banghart, daughter of the prominent Banghart family in Yavapai County, married John Marion, owner and editor of Prescott’s Weekly Arizona Miner, on September 16, 1873. During ten years of marriage, Flora gave birth to two children, before running off to California with Marion’s good friend, District Attorney Charles Rush, abandoning Marion and her children. He divorced her on grounds of desertion through the Yavapai District Court on March 29, 1887.44

Nationwide, women initiated approximately 66 percent of divorce petitions. Twice as many divorces were initiated and granted to women as those initiated by men.45 This may seem surprising given the common assumption that nineteenth-century women were [End Page 290]

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Florence Banghart Marion and John Marion. Florence abandoned John and their two children, and he divorced her for desertion in 1887. Courtesy of Sharlot Hall Museum Library and Archives.

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dependent on men. That nearly twice as many women as men petitioned for divorce indicates that wives in unsatisfactory marriages were willing to divorce to improve their situations. This was especially true in the western states and territories where men greatly outnumbered women, and women may have felt that their chance of finding a more suitable spouse was high. In Arizona Territory in 1880, there were 230 men for every 100 women. In 1900, there were 140 men to every 100 women.46

Percentage of Divorces Initiated by Husbands and Wives, Nationally and in Arizona Territory47

Arizona United States
1867–1886 Husbands 33% 34%
1867–1886 Wives 67% 66%
1887–1908 Husbands 33% 33.5%
1887–1908 Wives 67% 66.5%

Desertion and cruelty were the leading causes of divorce in nineteenth-century Arizona. Often lack of support combined with other causes to lead couples to divorce. Mary E. Hanson, a resident of Prescott, divorced Charles Hanson in 1880 on the grounds of cruelty and failure to support her and their four children. Mary remarried the following year to a man named Solomon Smith. The couple had one child together. He died in 1895, leaving Mary a widow for several years. She led an active life, supporting women’s suffrage and writing poetry, which was published in local magazines. In 1909, Mary wed for the third time to Joseph Merrick. This union lasted until Joseph’s death in 1915. Mary died in 1918 at the age of seventy.48

Louise Genung Earle also suffered from desertion and lack of support in her marriage. Louise had married John W. Z. Earle in November 1901, when John worked at a smelter in Humboldt. [End Page 292]

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Mary E. Hanson Merrick. Mary divorced her first husband, Charles Hanson, on the grounds of cruelty and failure to support. She remarried, was widowed and later married a third time to Joseph Merrick. She was known for her poetry and support of woman suffrage. Courtesy of Sharlot Hall Museum Library and Archives, Territorial Women’s Memorial Rose Garden Collection.

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John spent considerable time working in Mexico without informing Louise of his whereabouts. During their first year of marriage, he went to work there, and she learned of his job in Mexico from John’s cousin. Louise went and stayed with him in Mexico, giving birth to a daughter there. In her petition for divorce, Louise stated that while they lived in Mexico, John did not support her or their daughter. She had to resort to asking family members to send money before going home to live with her mother on the family ranch. Due to desertion and lack of support, she received a divorce on December 17, 1907. Within a few years, Louise was working as a telephone operator. She married again in 1911 and gave birth to a second daughter a few years later.49

Louise’s sister, Grace Genung Chapman, also divorced her husband. Grace married Harry Chapman in 1905, and the couple had two children, a son and a daughter. In her divorce petition, Grace stated that Harry was an able-bodied man, a mining engineer who did not provide for his wife and two children. The divorce was granted in 1919, and Grace received custody of the children. Grace Chapman went on to have a long career as Yavapai County recorder.50

Lack of support was also the reason that Lulu Rockwood Hall divorced her husband in Phoenix in 1919. The couple had been living in Mexico, but they returned to the United States during the Mexican Revolution. Although they had agreed to establish a home in Los Angeles, Mr. Hall did not do so and did not support his wife after 1917. They had four children together, most of whom were grown, except a young daughter. After the divorce, Lulu Hall built a successful career as a businesswoman, running hotels including the Wetherford in Flagstaff and the Beale Hotel in Kingman, which she also owned.51

National reports issued by the U.S. Commissioner of Labor and the Census Department put these and other divorces into historical context. The U.S. Commissioner of Labor published the first national study of divorce in 1887. The U.S. Census Department [End Page 294]

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Grace Genung Chapman. Grace divorced her husband, Happy Chapman, due to desertion and failure to support. She retained custody of their two children and worked in the Yavapai County Recorder’s Office. She served as county recorder for many years and remained single. Courtesy of Sharlot Hall Museum Library and Archives, Territorial Women’s Memorial Rose Garden Collection.

published the second in 1906. By 1906, the study illustrated a marked increase in the number of divorces all over the nation, but divorce was much more common in the western United States than in other regions. The rate of divorce in the West was over four times that reported in the North Atlantic states and nearly four times that of the South Atlantic states. Divorce rates were highest in Washington state, then Montana, followed by Colorado, Arkansas, Texas, Oregon, Wyoming, Indiana, Idaho, Oklahoma and then Arizona, which ranked eleventh in the nation.52 Observers believed [End Page 295] this was due to the mobility of the population in the West, as well as shorter residency requirements.

Causes of Divorce in Arizona and Unites States, 1887–190653

Arizona United States
Desertion
Granted to husband 72% 49%
Granted to wife 40% 33.6%
Adultery
Granted to husband 18% 28.7%
Granted to wife 3% 10%
Cruelty
Granted to husband 6% 10%
Granted to wife 28% 27.5%
Drunkenness
Granted to husband 1.9% 1.1%
Granted to wife 5.4% 5.3%

Nationally, the most common reason for divorce was desertion, which accounted for 38.9 percent of all divorces granted from 1887 to 1906. Desertion accounted for 49 percent of divorces granted to husbands and for 33.6 percent of those granted to wives. Following desertion, adultery was the second leading cause of husbands initiating divorce; 28.7 percent of those granted to husbands were due to the wife’s adultery. For wives, cruelty was the second leading cause of divorce with 27.5 percent being granted for this reason. The census study noted that only 10 percent of divorces granted to wives were for adultery of the husband. Demographer Carroll Wright wrote that both husbands and wives could divorce their spouses for adultery, but women cited adultery as a reason for divorce far less often. Wright wrote, “public sentiment doubtless condemns the offense in the wife more strongly than in the husband, and possibly the courts are in some degree influenced thereby.” The double standard of sexual behavior led people to assume that men [End Page 296] could participate in sexual relationships outside of marriage without damaging their moral character, while such acts by women led to outrage.54 In Arizona, the causes of divorce differed from national statistics in a few ways. Desertion was more often a cause of divorce in Arizona, especially for husbands, while adultery resulted in fewer divorces in Arizona Territory than it did across the nation. For wives in Arizona and throughout the United States, cruelty and drunkenness caused approximately the same percentage of divorces. Other divorces were caused by more than one problem, and these types of divorce account for approximately one-quarter of divorces given to wives in Arizona. Often failure of the husband to provide was linked to other problems.

Forty-six percent of the wives granted divorces in Arizona from 1887 to 1906 had children according to the Census Bureau, while 28 percent of the men who were granted divorces reported having children. There was higher discrepancy in this number between men and women in Arizona than in other states and territories.55 Possibly, this discrepancy occurred because some of the women divorcing in Arizona had children from an earlier marriage. It was uncommon to receive alimony during this period. Only 9 percent of the women asked for alimony and just 4.9 percent received it. Among husbands, 2.5 percent requested alimony and 1 percent received it. The percentage of women receiving alimony in Arizona was lower than that in most other western states.56

In 1922, Emma Marie Elliott petitioned to divorce her husband, R. C. Elliott, due to both adultery and cruelty. This couple owned a farm in Tempe at Elliot and Kyrene Roads. They had married in Tempe in 1913 and had two daughters. According to the divorce petition filed by Emma Marie, he began treating her cruelly in 1921 and, in addition, he “kept company” with another woman. In fact, R. C. had told Emma that he loved the other woman and had lost affection for her. R. C. had urged Emma to secure a divorce, but she had hesitated until finally deciding that divorce was the best course of action. The divorce petition described Emma Marie’s property, including what she had brought to the marriage as well as the community property the couple had acquired during [End Page 297]

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Emma Marie Elliott (later Hazard) farmed with her husband, R. C. Elliott, on the corner of Kyrene and Elliot in Tempe. She divorced him on the grounds of cruelty and adultery in 1922. She retained custody of their children, as well as all of their community property and continued to run the farm. She later remarried. Courtesy of Sharlot Hall Museum Library and Archives, Territorial Women’s Memorial Rose Garden Collection.

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their marriage. They owned a large farm, farm equipment, and horses. Emma Marie’s lawyers asked the court to grant a divorce, award custody of the children to her, and to award all of the property to her, including the community property. Her husband had been summoned to appear in court, but he did not appear or send legal counsel.57

The following month the judge agreed to the provisions set forth in Emma Marie’s petition and awarded her all of the property. R. C.’s absence from the courtroom undoubtedly hurt his cause, especially since he was accused of adultery. Spouses who were adulterous were often punished more harshly than those accused of other bad behaviors. Following the divorce, Emma Marie went on to run the family farm, and she eventually remarried.58

While Emma Marie Elliott divorced due to adultery and cruelty, other women in this sample had different reasons for pursuing divorces. Lucille Denson divorced her first husband because he would not settle down and kept moving to new towns. She married again to William Freeman Yopp, a Prescott carpenter. They stayed together for five years, and then she divorced him because he wanted to put her epileptic son into an asylum. Lucille managed to stay with her children during these years.59

Alice E. White also divorced in the early 1920s. She had married James T. White in 1912, and the couple had one son. She petitioned for divorce due to cruelty and mental suffering. Although the Yavapai County District Court summoned James to appear in court, he did not. At the time, he was living in Raton, New Mexico. On June 14, 1921, the court granted Alice a divorce, as well as custody of her son but did not grant alimony.60 Alice remarried two months later to Ben Stewart, a cattleman. They had three children together.61

Although many divorced women went on to lead fulfilling lives, by working or marrying again, other women faced severe difficulties. Four women were imprisoned in the Yuma Territorial Prison for committing adultery. During the life of the prison, [End Page 299] twenty-nine women served time, four of whom were imprisoned for violating the Edmunds Act (1882) by being adulterous. This law is best known for outlawing polygamy, but it also forbade cohabitation between a married person and someone not his or her spouse. The women’s male partners were also tried and convicted. It is unclear why some couples were punished for this act, while others were not. Two of the women sentenced to prison for adultery were Hispanic, and one was an Irish immigrant.62

Alfreda Mercer, a white married woman, was imprisoned in Yuma Territorial Prison in 1901 for adultery. Newspaper articles indicate that she had an affair with a “boy” much younger than she. She also frequented saloons and bars, living in an untraditional manner for an early-twentieth-century wife, while her husband and children were at home. Her husband, Stephen Mercer, was in the courtroom when she was tried, convicted, and sentenced. After her sentencing, he waited with her before she was transported to prison. Following her sentence, Alfreda went home to Stephen, and they remained married. When he died in 1918, he was still listed as married on his death certificate. Some marriages survived severe tests, and this appears to be one of them.63

Kate Nelson, an Irish immigrant, was also imprisoned for adultery. While running a boarding house with her husband in Douglas, they boarded a man named E. W. Birch, who apparently had an affair with Kate. She and Birch were accused of adultery and convicted of violating the Edmunds Act in 1904. Both were sentenced to two years in the Yuma Territorial Prison. Kate was an Irish immigrant; perhaps this fact affected the length of her sentence, which was much longer than other sentences for adultery. Kate Nelson and E. W. Birch served their time and were released.64 [End Page 300]

Some of the colorful adultery cases were covered in detail in local newspapers. For example, Angelita Berdusco, who claimed to be divorced, ran off with Alonzo Martini, who was a juggler performing in Glendale. Both Angelita and Alonzo were charged with adultery and convicted. Higinio Berdusco testified that Angelita was still his wife; apparently she had not gone through with the divorce. After their conviction, Angelita and Alonzo were each sentenced to serve ten months. This case drew notoriety because they had “eloped” with another couple composed of a man named Yraneo Romero and Angelita’s sister, who was not of age. Romero, who was charged and convicted of rape, also served time.65

Another woman named Angelita Sonoqui, a washerwoman, had an affair with Jose M. Montoyo. They were indicted and convicted of violating the Edmunds Act in 1909. His sentence was eight months, while hers was only four months. They had also been accused of violating the Edmunds Act in 1905. At that time, Angelita’s husband made the complaint, accusing Angelita and Jose of having an affair, but the case was dismissed due to lack of evidence.66

Apparently, Angelita and Jose carried on their relationship after the first accusation. Perhaps Angelita lacked the funds (approximately fifteen dollars) to pursue a divorce through the courts. Angelita was released after serving her time. Five years later, in 1914, she was again in the newspaper. A murder had been committed near her home, which was called a shack in the article in the Arizona Republican. A man was found hiding in a tent in her backyard. While Angelita was not implicated in the crime, the article provides evidence of her continued poverty.67

There were dozens of other people tried for committing adultery in Arizona Territory under the Edmunds Act, but only these four women were imprisoned in the territorial prison.68 Most likely their imprisonment was related to their ethnicity and immigrant [End Page 301] status, as well as the sensational aspect of Alfreda Mercer’s actions and her affair with a much younger man.

Marriage and divorce could be complicated, especially when people from different ethnic groups married. Although miscegenation laws forbade marriages between whites and those of African, Chinese, and Native American descent, some couples circumvented Arizona’s miscegenation law by traveling to New Mexico to marry. Other couples were already married when they arrived in Arizona and were not affected by the law. Still others obtained marriage licenses from county clerks who did not question their ethnic origins.69

In a thorough study of these types of unions, historian Sal Acosta illustrates that while the majority of the marriages were long-lasting, some resulted in divorce. In the case of divorce or when a person of color was widowed, divorced spouses and relatives sometimes attempted to have marriages declared null and void due to miscegenation laws. Extended family property heirs or whites divorcing their spouses could try this maneuver to gain access to all of the community property, which would be divided in a divorce. Acosta discusses a case involving Joe Kirby, who married Mayellen Conner, a black woman from Kansas. They married in 1914 and were experiencing problems by 1920. At that time, Joe went to court to annul their marriage based on miscegenation laws. He was successful, and when the court annulled the marriage, Joe did not have to divide their community property or pay spousal or child support.70 Miscegenation laws were intended to prevent interracial marriages but could be used to allow whites to control community property by annulling a marriage with a person of color.71

Divorce for people from all ethnic and racial groups increased across the United States during the 1920s. In 1928, the divorce rate was 16.59 percent for the state of Arizona.72 By 1930, the divorce rate in Arizona was ninth highest in the nation for men and women. The divorce rate for married Arizona women in 1930 was 12.9 [End Page 302] percent, the fifth highest in the nation. Sixty-eight percent of divorces were granted to wives in 1930.73 Just as they had in earlier decades, women continued to initiate divorce at much higher rates than men.

Following divorce, many women went on to work or to remarry. These sample biographies illustrate that divorced women held a great variety of jobs. Louise Genung Walcott became a telephone operator while Josephine Shupp and Ida Burnett Mosher both ran boarding houses and then remarried. Lulu Rockwood Hall, a businesswoman, ran Flagstaff’s Wetherford Hotel and later owned the Beale Hotel in Kingman.74 Emma Marie Elliott and others ran ranches and farms. Other women became cooks or house maids. Many remarried, but some remained single, such as Grace Chapman, who was the Yavapai County recorder for decades.75

In the late nineteenth and early twentieth centuries, divorce was not uncommon, and divorces were initiated by women twice as often as they were by men. Although cast in a dependent domestic role by gender ideals, this study illustrates that some Arizona wives were not willing to accept an inadequate domestic situation, and some chose divorce to escape unhappy marriages. Divorced women displayed independence, finding a variety of means to support themselves because alimony was uncommon.

This analysis, like all historical studies, is based on the available sources. Most likely there are stories missing from the historical record of divorces that ended disastrously for women. Yet these sources illustrate that divorce could lead to greater autonomy for some women, even in the late nineteenth and early twentieth centuries, when women had few job opportunities and faced low pay. However, this autonomy was more often available to white women who did not face racial and ethnic prejudice. The small number of divorced women who were imprisoned for adultery were primarily Hispanic or immigrants. In addition, some women of color who married whites lost community property in cases of divorce. Arizona law protected women’s community property in divorce, but [End Page 303] this protection did not assist women of color in biracial marriages, if their white husbands went to court to annul their marriages. Divorced women could attain autonomy as nineteenth-century women’s rights advocates had argued, but due to racial and ethnic prejudice, greater freedom and opportunity was available to white women than to women of color. [End Page 304]

Mary Melcher

MARY MELCHER holds a PhD in history from Arizona State University. She has worked as a museum curator, was the historian for the Arizona Women’s Heritage Trail, and is the author of Pregnancy, Motherhood, and Choice in Twentieth-Century Arizona (University of Arizona Press, 2012).

Footnotes

1. Bureau of the Census, Marriage and Divorce, 1867–1906 (Washington, D.C., 1909), 16.

2. Glenda Riley, Divorce: An American Tradition (Lincoln, Neb., 1997), 74, 94, 121; Mary Somerville Jones, An Historical Geography of Divorce of the Changing Divorce Law in the United States, 1867–1972 (New York, 1987), 30–31.

3. Carroll D. Wright, Marriage and Divorce in the United States, 1867 to 1886 (Washington, D.C., 1889), 78.

4. Sandra F. Van Burkleo, Belonging to the World: Women’s Rights and American Constitutional Culture (New York, 2001), 71.

5. The Sharlot Hall Museum Archives (hereinafter SHM Archives) contains the Territorial Women’s Memorial Rose Garden collection of biographies of women who lived in the Arizona Territory. These biographies provide excellent sources for studying divorce. Although there are about four hundred biographies, only two hundred of them were used for this article.

6. Territorial Women’s Memorial Rose Garden biographies are on the SHM Archives website, http://www.sharlot.org/archives/rosegarden/search.pl?str= (accessed November 5, 2018).

7. The Howell Code: Adopted by the First Legislative Assembly of the Territory of Arizona (Prescott, Ariz., 1865), 230–32. The age of consent was eighteen for men and sixteen for women. Younger females could marry with the consent of a guardian.

8. Acts, Resolutions and Memorials, Adopted by the Second Legislative Assembly of the Territory of Arizona (Prescott, Ariz., 1866), 58.

9. Howell Code, 232–33. In allowing divorces for these causes, the Howell Code was more permissive than legal codes established in other states and territories. See Kristin Celello, Making Marriage Work: A History of Marriage and Divorce in the Twentieth-Century United States (Chapel Hill, N.C., 2009), 19, 120.

10. Howell Code, 233–34; Jones, An Historical Geography, 30–31. The influence of religion also affected divorce rates; New Mexico, home to many practicing Catholics, had a lower rate of divorce than did Arizona. New Mexico ranked thirty-third in number of divorces in comparison to the rest of the states and territories. See Wright, Marriage and Divorce, 1867–1906, 15.

11. Howell Code, 233; Wright, Marriage and Divorce in the United States, 1867–1886, 80.

12. Revised Statutes of Arizona Territory (Columbia, Mo., 1901), 814–15.

13. Jones, An Historical Geography, 30–31.

14. Howell Code, 233–34.

15. Ibid. In particular, the Howell Code demonstrated differing views of men’s and women’s roles concerning adultery. If a wife divorced her husband due to adultery, the wife’s personal property would be restored to her following the divorce, but the court could appoint a trustee who would oversee and invest the property to produce income in order to support her and her children. The court could direct the trustee to pay specific sums to the divorcee. This dealt with the wife’s property. The husband was ordered to disclose what property he had amassed during the course of the marriage. If the wife could not support herself with her property, the court would order the husband to pay alimony. Wives were also severely punished if they committed adultery. When a husband divorced his wife due to adultery, the Howell Code stated that the “husband shall hold her personal estate for ever, [sic] and he shall also hold her real estate so long as they both live; and if he shall survive her, and there shall have been issue of the marriage born alive, he shall hold her real estate for his own life, as tenant by the curtesy.” Even though the husband gained control of the adulterous wife’s property, the court could provide subsistence for the wife from her own property. It did not require the husband to use his property to provide this, but he was required to provide it through her property, and he would control the rest of the property amassed during the course of the marriage. But when he committed adultery, she would get half of his property if they had children together, and the children would get the other half.

16. Ibid.

17. The Arizona territorial legislature established community property law in 1864, and by 1871, the legislature and territorial court system took steps to protect the wife’s separate property from coming under the control of her husband in case of divorce. See James M. Murphy, Spanish Legal Heritage in Arizona (Tucson, 1966), 37. See also John P. Hoyt, comp., The Compiled Laws of the Territory of Arizona, 1864–1877 (Detroit, 1877), 317.

18. Howell Code, 234; Wright, Marriage and Divorce in the United States, 1867 to 1886, 99.

19. Riley, Divorce, 51, 82–83, 90–91.

20. Howell Code, 232–33; Arizona Statutes, 1887 Title 16, CH 4, Sec. 2110, 373; Wright, Marriage and Divorce in the United States, 1867 to 1886, 79.

21. Acts, Resolutions and Memorials, Adopted by the First Legislative Assembly of the Territory of Arizona (Prescott, Ariz., 1865), 19–20. See also petition and supporting papers in the Elliott Coues Collection, Arizona Historical Society, Tucson, Ariz.

22. Acts, Resolutions and Memorials, Adopted by the First Legislative Assembly of the Territory of Arizona, 42.

23. Acts, Resolutions and Memorials, Adopted by the Fourth Legislative Assembly of the Territory of Arizona (Prescott, Ariz., 1868), 2.

24. Acts, Resolutions and Memorials, Adopted by the Sixth Legislative Assembly of the Territory of Arizona (Tucson, 1871), 18, 27, 48.

25. Constance Wynn Altshuler, “The Scandalous Divorce: Governor Safford Severs the Tie that Binds,” Journal of Arizona History 30 (Summer 1989): 181–92; Acts, Resolutions and Memorials Adopted by the Seventh Legislative Assembly of the Territory of Arizona (Tucson, 1873), 3.

26. Acts, Resolutions and Memorials of the Ninth Legislative Assembly of the Territory of Arizona (Tucson, 1877), 6, 16–21.

27. Acts and Resolutions of the Tenth Legislative Assembly, of the Territory of Arizona (Prescott, Ariz., 1879), 5–8, 46, 112.

28. “Divorce by Territorial Legislatures,” San Francisco Bulletin reprinted in Arizona Sentinel (Yuma), February 22, 1879.

29. Arizona Weekly Miner (Prescott), February 28, 1879, p. 2.

30. Yuma Exposition reprinted in Arizona Silver Belt (Globe), February 28, 1879. The Arizona Sentinel also criticized legislative divorces on February 15, 1879.

31. Jay Eby, “John Gosper, Arizona’s Would-be Governor,” Territorial Times, Fall 2012. Jay J. Wagoner, Arizona Territory 1863–1912: A Political History (Tucson, 1970), 60.

32. Western States Marriage Index, 1809–2011, Brigham Young University–Idaho, available online at http://abish.byui.edu/specialcollections/westernstates/search.cfm.

33. Daily Alta California (San Francisco), March 22, 1879.

34. Daily Alta California, March 26, 1879.

35. Weekly Arizona Miner, March 14, 1879.

36. Sacramento Daily Union, October 16, 1879.

37. 1880 U.S. Census, San Francisco, California, William F. Smith, age 34, widowed. Annie Carpenter proved to be quite adventurous in her romantic entanglements. Several years later, in 1886, she was in court because she had received a death threat from someone named Mrs. Kerrigan. It appears that Annie was the former mistress of Mr. Kerrigan. At this time, she was known as Annie Smith-Carpenter. The author of the article further stated that “Annie has led a rather adventurous life,” living in a place that is neither a lodging house nor a private residence, perhaps implying that she lived in a house of prostitution. Daily Alta California, February 5, 1886.

38. Wright, Marriage and Divorce in the United States, 1867 to 1886, 78–79, 151.

39. VanBurkleo, Belonging to the World, 70.

40. Linda Peavy and Ursula Smith, Women in Waiting in the Westward Movement: Life on the Home Frontier (Norman, Okla., 1994), 17.

41. Wright, Marriage and Divorce in the United States, 1867 to 1886, 45.

42. Wright, Marriage and Divorce in the United States, 1867 to 1886, 169.

43. Riley, Divorce, 87.

44. Fred W. Veil, “The Bangharts of Prescott and Chino Valley,” Territorial Times, Spring 2015, p. 13; Bureau of the Census, Marriage and Divorce, 1867–1906, 86.

45. Wright, Marriage and Divorce in the United States, 1867 to 1886, 169–71.

46. 1880 U.S. Census: vol. I, Statistics of the Population, table XXI; U.S. Census Bureau, Twelfth Census of the United States 1900, vol. 1, Statistics of Population, table 9 (Washington, D.C., 1901), 482.

47. Wright, Marriage and Divorce in the United States, 1867 to 1886, 170; Bureau of the Census, Marriage and Divorce, 1867–1906, 86.

48. Mary Hanson Smith Merrick biography, SHM Archives; Mary E. Hanson v. Charles Hanson, January 25, 1880, Fourth Judicial District Court of the Territory of Arizona, Prescott.

49. Louise C. Earle v. John W. Z. Earle, March 28, 1907, Fourth Judicial District Court of the Territory of Arizona, Prescott; Louise C. Walcott biography, SHM Archives.

50. Grace Chapman v Harry S. Chapman, September 16, 1919, Fourth Judicial District Court of Arizona, Prescott; Grace Chapman biography, SHM Archives.

51. Arizona Republican, December 20, 1919; Lulu Rockwood Hall biography, SHM Archives; Arizona Republican, April 11, 1919.

52. Bureau of the Census, Marriage and Divorce, 1867–1906, 14–16.

53. Ibid., 25–26, 86.

54. Ibid., 25–27.

55. Ibid., 126.

56. Ibid., 99.

57. Emma M. Elliott v. R.C. Elliott, Superior Court of Maricopa County, Phoenix, Arizona, No. 15577.

58. Ibid.; Emma M. Elliot biography, SHM Archives.

59. Lucille Denson Yopp biography, SHM Archives.

60. Alice E. White v. James Thomas White, Superior Court of Yavapai County, Prescott, Arizona, No. 8200.

61. Alice White Stewart biography, SHM Archives.

62. Elizabeth J. Klungness, Prisoners in Petticoats: The Yuma Territorial Prison and Its Women (Yuma, Ariz., 1993), 139–41, 162–64, 183–86. On the Edmunds Act see “Edmunds Act,” in Religion and American Law: An Encyclopedia, ed. Paul Finkelman (New York, 2000), 318.

63. Arizona Republican, November 15, 1901; ibid., November 16, 1901; Arizona State Board of Health, Bureau of Vital Statistics, Certificate of Death, Stephen Mercer, September 3, 1918. An article from the Arizona Republican, September 3, 1918, stated that Alfreda Mercer had nursed her husband for three years before his death. Alfreda Mercer died in 1929 due to pneumonia. See also U.S. Territorial Court for the Third Judicial District of Arizona, Case 532, Box 14, RG 21, National Archives and Records Administration (hereinafter NARA), Riverside, Calif.

64. Bisbee Daily Review, December 14, 1904; ibid., December 17, 1904; ibid., August 5, 1906; ibid., August 2, 1906. See also U.S. Territorial Court for the Third Judicial District of Arizona, Case 603, Box 35, RG 21, NARA, Riverside, Calif.

65. Arizona Republican, August 22, 1908; ibid., August 26, 1908; ibid., October 23, 1908. See also U.S. Territorial Court for the Third Judicial District of Arizona, Case 727, Box 19, RG 21, NARA, Riverside, Calif.

66. Arizona Republican, July 19, 1905; ibid., October 22, 1905; ibid., March 3, 1909; ibid., March 5, 1905.

67. Arizona Republican, December 27, 1914.

68. U.S. Territorial Court for the Third, Fourth and Fifth Judicial Districts, Territory of Arizona, RG 21, NARA, Riverside, Calif.

69. Sal Acosta, Sanctioning Matrimony: Western Expansion and Interethnic Marriage in the Arizona Borderlands (Tucson, 2016), 74–84.

70. Ibid., 36–39.

71. Peggy Pascoe, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Journal of American History 83 (June 1996): 44–69.

72. Louise I. Dublin, “Vital Statistics,” American Journal of Public Health 20 (Sept. 1930): 1014–17.

73. National Vital Statistics System, U.S. Department of Health, Education and Welfare, 100 Years of Marriage and Divorce Statistics United States, 1867–1967, series 12, no. 24, (Rockville, Md., 1973), 36–37, 51.

74. Arizona Republican, December 20, 1919; Lulu Rockwood Hall biography, SHM Archives.

75. Ibid.; biographies of Louise Genung Walcott, Josephine Shupp, Ida Burnett Mosher, Lulu Rockwood Hall, Emma Marie Elliot and Grace Genung Chapman, SHM Archives.

Additional Information

ISSN
2689-3908
Print ISSN
0021-9053
Pages
279-304
Launched on MUSE
2020-01-02
Open Access
No
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