Genealogy Today, by Betty Lou Malesky, CG
Researchers Often Overlook Divorce Records
D-I-V-O-R-C-E reminds one of the 1968 song by Tammy Wynette. In fact, most of us probably think of divorce as a twentieth century occurrence. But according to the French philosopher Voltaire, it's "likely been around since the advent of formalized marriage."
Divorce is first mentioned in the Bible's Mosaic Law, for instance in Deuteronomy 24:1, "If a man marries a woman who becomes displeasing to him because he finds something indecent about her, and he writes her a certificate of divorce . . . ." In the Bible, divorce was only available to the husband.
In the Catholic Church divorce was a church function not usually permitted. England's King Henry VIII left the Church when his own divorce was not granted. He formed the Church of England and made divorce a legal issue for the courts to decide. When settlement of New England began, the colonists brought the English judicial system with them.
In 1639 the first divorce was granted in Puritan Massachusetts. As in the Bible, a colonial divorce was generally obtained by the male because laws favored him and few women had the means to initiate it anyway. With or without legal divorce, disagreeing couples would separate and authorities felt divorce was the better alternative.
Even so, early newspapers were filled with advertisements offering rewards for runaway wives and announcements that couples had parted and were not responsible for each other's debt. By the mid 1800s only South Carolina prohibited divorce entirely.
Prior to the Revolution, grounds were limited and varied from state to state. In many states the only grounds was adultery. Other states allowed charges of desertion or physical abuse. In every case, one party had to be at fault. The party suing for divorce had to be innocent of any wrong doing and provide witnesses to the spouse's errant behavior.
Connecticut's laws were the most liberal. Divorce was permitted for "...adultery, fraudulent contract, desertion for three years, or prolonged absence with a presumption of death." Two additional grounds habitual drunkenness and intolerable cruelty were added in 1843.
Times changed and no fault divorce first became law in California in 1969. Throughout the 1970s other states followed suit until today nearly all divorces are granted due to "irreconcilable differences" with neither party at fault. Latest estimates are that over 50% of marriages will end in divorce.
Family Researchers seldom look for divorce records because they don't expect to find it in their family.
Often the researcher has no idea there was a divorce in the family as it was never discussed. Divorced women told the census taker they were widows to avoid the stigma of being divorcees. If one spouse is living without the other and there is no evidence of a death, think divorce.
It's necessary to determine how divorce was handled in a particular state in order to know where to find the records. In New York, for instance, until the late 1800s a divorce petition was filed in the state Supreme Court. In some states cases were heard in Chancery Court, in others in Common Pleas Court. The records will usually be found by searching the general index to court cases in the County Clerk's office.
Don't overlook divorce records in your research. You may find the date of marriage, names of all children with birthdates, spouse's occupation, residence, names of other family members, reason for the divorce and other details depending on the testimony. Next month I'll discuss some divorce cases from my files.
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1 May 2011