The Complete Guide to Divorce
Your Marriage and the Law
Wives’ Legal Rights
The Road to Reno: A History of Divorce in the United States
Divorce is a depressing subject from almost any point of view. For participants, it is not likely to be an ennobling experience; nor does it have the compensatory virtue, like other forms of suffering, of lending itself to literary uses. Artistically divorce is a disaster, combining the maximum of pain with the minimum of dignity—not exactly the ingredients of tragedy. The subject might have comic possibilities, in the hands of a writer with a talent for the bizarre. Such talents, however, are not the kind usually attracted to the subject. The accepted way of writing about divorce, for novelists and scholars alike, is to adopt at the outset the grim earnestness considered appropriate to discussions of important but somewhat marginal social “questions”—venereal disease, illegitimate births, and the like. Divorce, like these other issues, belongs by literary and scholarly convention to the category of questions to which readers have to be urged, implicitly or explicitly, to “face up.” Because divorce has never securely established itself as a subject of serious inquiry, tinged as it is with sensationalism, a serious writer dealing with the subject has to expend most of his energy trying to establish his seriousness: a dreary business, not very conducive to flights of the imagination.
If divorce is depressing, American divorce is peculiarly so, because of the peculiarly irrational character of our divorce laws. If they had been deliberately designed to corrupt all whom they touched, the laws could not more effectively bring out the worst in everybody. The definition of divorce as an adversary proceeding, instead of a mutual agreement, turns husbands and wives into embattled witnesses against each other, poisons the air with recriminations, locks the contestants more firmly than ever in postures of outraged self-righteousness, and makes more difficult than it already was a peaceful parting of ways. Even if the couple agree to divorce, the law requires them to act out the charade of charge and counter-charge—prearranged discoveries of illicit assignations in “love-nests,” fabricated injuries and affronts, rituals and conventions which deceive no one but which have to be performed in the name, of all things, of justice. Anyone who passes through this process must emerge in one way or another humiliated and degraded. Worst of all are the divorce lawyers, men exposed not to a single one of these episodes but to a whole career of fraud, perjury, and marital distress—itself an intrinsically unedifying spectacle, quite apart from its legal ramifications—and who, thus toughened, are called upon to advise people faced with a situation abounding in moral and emotional ambiguities. One of them recently summed up his advice to a client: “Screw her before she screws you!” Given our laws, this counsel is not inappropriate, but it hardly adds to the sum of the world’s wisdom and beauty.
Something of the flavor of American divorce is conveyed by handbooks like Pilpel and Zavin’s Your Marriage and the Law and Kling’s Complete Guide to Divorce, even though such books are not meant to convey much of anything, beyond the intricacies of the law. The important thing about these books is that they should have been written at all, and not only written but published and, presumably, read. The proliferation of legal manuals on divorce suggests that there is a ready market for them. Dell’s “Purse Book” entry in the field fits conveniently into a handbag, ready for consultation at the slightest assault upon the legal rights of the vigilant wife; one can buy a copy at the A & P. Apparently people consult these books with no more compunction than they would turn to any other kind of do-it-yourself book, and doubtless for the same reason, because professional services are so costly. It may also be embarrassing to go to a lawyer unless one has some idea, in advance, of the consideration one is entitled to; and the laws, of course, are forbiddingly complex, even as elucidated by legal minds as subtle as Mr. Kling’s. Consider the delicacy of the following questions, two of hundreds with which Mr. Kling manfully grapples.
A husband discovers that his wife has had a clandestine meeting with another man whereupon the husband becomes violent, insulting, and abusive. May the wife obtain a divorce because of the husband’s creulty?
Not if no blows were struck and the wife was not threatened with bodily harm.
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The only way a husband can achieve an erection is to have his wife beat him with a strap. Is the husband’s masochism a sufficient cause for divorce?
Probably. If it can be shown that the husband’s masochism is the only way he can have an erection after which he inserts the penis into his wife’s vagina (a practice which the wife finds repugnant) relief would probably be granted the wife by way of divorce…
Mr. Kling, like most other authorities on the subject, believes (a) that divorce is preferable to an unhappy marriage but (b) that every couple, and their lawyers and counselors, ought first to try to save the marriage. “My bent has ever been toward saving marriages whenever possible, not in destroying them.” These are unimpeachable sentiments in the abstract, but it is important to note the constant juxtaposition, in the literature on divorce, of pious exhortations to save the marriage with the sordid view of marriage actually implied by the divorce law—an intricate bargain, a tangle of contractual rights and obligations. The juxtaposition makes one suspect that there may be some relation, here as elsewhere in American culture, between official piety and popular cynicism. Indeed the literature on divorce faithfully reflects American folklore about marriage: on the one hand marriage is sacred, on the other hand it is a prison from which both parties seek unceasingly to escape, he to evenings out with the boys, she to shopping sprees and neighborhood socials. According to folklore, marriages survive, if they survive at all, because the respective partners are able to flatter and cajole each other into an occasional semblance of marital bliss; above all, marriage is something to be managed. The law of divorce is neither more nor less cynical than Blondie and Dear Abby. If anyone wishes to understand American divorce, let him begin by understanding American marriage.
It is just this point—the connection between a society’s divorce customs and its way of handling marriage—that curiously eludes scholars. It eludes them partly because divorce has been defined as a distinct scholarly specialty in its own right, but also because of the assumptions most scholars bring to the subject. Most of the writing on divorce starts from the reformist premise that the divorce laws ought to be standardized (but since migratory divorces are now known to account for a smaller proportion of divorces than was formerly believed, uniformity is no longer the reformers’ chief demand) and, more important, liberalized. From this point of view, the divorce laws are above all an anachronism, perpetuated only by a combination of political pressures (the Catholic vote, the general riskiness of anything which can be construed as an attack on the family, the absence of organized interests willing to fight for reform) and “cultural lag.” The restrictions on divorce are seen as a survival of an outmoded “Puritanism” no longer in keeping with the needs and wishes of the population. Nelson Blake, for instance, notes that he began his study of American divorce out of curiosity “about a situation in which the law seemed to have so little foundation in the actual mores of the population.” Pilpel and Zavin make the same point. “While a real social revolution has been going on affecting in a thousand ways the importance and relative permanence of marriage, the divorce laws have remained the same with only few minor exceptions.”
Writers on divorce almost universally assume, moreover, that the rising divorce rate reflects the continuing disintegration of the patriarchal family—“Puritan” or “Victorian” as the case may be—which the laws anachronistically seek to maintain. The prevalence of divorce, in other words, appears to reflect a general dissolution of family feeling, which conservatives deplore and reformers applaud but which both see as the central feature of the changing “mores”—marriage for love instead of family connections; insistence on happiness, especially sexual gratification, as the object of marriage; popular acceptance of “serial monogamy”—which are supposed to account for the increase in divorce. Arthur Calhoun, in his still-standard Social History of the American Family (1919), set the style for treating divorce as part of “the passing of patriarchism and familism” and of the revolt of women. He thought it highly significant that two-thirds of all divorces over a forty-year period (this tendency continues) were granted on demand of the wife. “The new ideals of woman are in conflict with the old despotism of the husband.” The Road to Reno avoids interpretation at practically every point—the chief weakness of the book—but Professor Blake, like Calhoun, seems to see divorce as a movement toward greater equality of the sexes. “Whereas divorce in earlier periods of history had been primarily a prerogative demanded by men to rid themselves of unwanted wives and open the way for new marriages, nineteenth-century American divorce was becoming more and more a right demanded by women on humanitarian grounds.”
Behind all these assumptions lies a basic misconception about the family and in particular about the Victorian family, which the “rising tide of divorce” is assumed to have eroded. Practically everybody who deals with the subject takes it for granted that the family is an old and venerable institution, whereas in fact the family as we know it—more precisely, the idea of the family as something set apart from the rest of society, a sanctuary from the world—would seem to have originated as recently as the late eighteenth and early nineteenth centuries. Before that, families served “not as refuges from the invasion of the world,” in the words of the French historian Philippe Ariès, “but as the centers of a populous society, the focal points of a crowded social life.” Privacy, now an indispensable attribute of family life, was unknown under the ancien régime; architecture did not even distinguish separate rooms for eating, entertaining, and sleeping. Servants seldom left their masters; nor were children segregated from adults in the way that is now almost universally taken for granted. The emergence of a distinguishable concept of childhood, in fact, was probably the decisive event in the evolution of the modern family; once children came to be seen not as miniature adults but as a special category of peculiarly impressionable and vulnerable persons, it was not long before the painstaking nurture and protection of children became the central purpose of the family. The conception of motherhood as nothing short of a holy office naturally followed. Seen in proper perspective, the Victorian family, far from being the last stronghold of patriarchal authority, appears as the prototype of the modern family, founded on the cult of domesticity, a new respect for children, and above all, the sentimental veneration of women; attitudes, it should be noted, which have by no means lost their appeal. It was precisely this cult of domesticity and veneration of women—not the demand that women be treated sexually as equals, much less a growing permissiveness about sex itself—that became the basis of the revised divorce laws adopted in England and the United States during the middle years of the nineteenth century.
The new laws substituted judicial for legislative divorce and broadened grounds for divorce to include other offenses besides adultery and cruelty, the most important being desertion. Women were clearly intended to be the principal beneficiaries of these changes; and as Calhoun’s statistics show, that was certainly the way things worked out. But neither that nor the fact that many feminists supported these reforms means that liberalized divorce represented a step toward the equality of women and away from Victorian domesticity. It was not the image of women as equals that inspired the movement for easier divorce, but the image of women as victims. We know what a familiar theme in Victorian melodrama was the disruption of domesticity: the wife and mother cruelly abused by her besotted husband, deserted and left with children to raise and support, or worst of all (this variation on the theme was strongly implied, though seldom stated outright) forced to submit to what Lady Byron cryptically referred to as “unspeakable” sexual demands. The new divorce laws—which are still, by and large, the laws in effect today—should be seen as another expression of the prevailing nineteenth-century sentimentality about women, so easily confused with the demand for equality but in the long run so subversive of it. “The whole theory of divorce,” writes Mr. Kling, “is predicted on the [assumption] that the party granted the divorce is innocent and that the party against whom the divorce is granted is guilty”—and three-fourths of all divorces are granted to women.
The strongest evidence, not only that these things were true of the nineteenth century, but that they continue to be true of the twentieth, is the current practice and rhetoric of the divorce courts, particularly with regard to alimony. Whatever the ostensible purpose of alimony, it is the almost unvarying aim of the wife’s lawyers to fix payments as high as possible, and judges are notably sensitive to the appeal of “suffering womankind,” although “the financial severity usually imposed on husbands,” according to Mr. Kling, “has been somewhat eased.” From the husband’s point of view, in fact, the whole thrust of the law is unmistakably punitive: the wife is assumed to be an innocent victim, the husband a tyrant, lecher, or playboy bent on evading not only his matrimonial obligations but the alimony payments which a minimal sense of decency would prompt him cheerfully to assume. Nobody on the side of the law questions that the wife—whatever the real reasons behind the divorce—has a right to whatever she can get; the burden of proof falls on the husband to show, in detail, why he should not be obliged to pay what his wife asks him to pay. And although imprisonment for other forms of debt was long ago recognized as inconsistent with the spirit of commercial enterprise and abolished, it survives in this branch of the law, where imprisonment is still the ultimate sanction for payment of alimony. The divorce courts, far from posing a threat to the family, thus constitute one of the last strongholds of Victorian sanctimoniousness. To speak of the rising divorce rate as evidence of “a new freedom for women” misses the point: This “freedom” derives from the very myths that effectively discourage women from aspiring to something more exalted than domesticity. The whole system of divorce—the prevailing assumption of the woman’s innocence, the inflated alimony payments extorted from the husband, the assumption common both to the law and to its critics that the “survival of the family” depends on the reform or the preservation of the existing arrangements—reminds us of the degree to which marriage still exerts an unnatural domination over the life-expectations of Americans of both sexes, particularly, of course, of American women. After more than a hundred years of feminist agitation, and in spite of the illusion of equal education, the ritual of courtship—the “marriage market,” as it used to be called—devours more than ever the energies of American girls and their mothers, to the exclusion of practically everything else. All the institutions of American society—family, school, church, the economy itself, which is geared to the production of “homes” and all the things necessary to operate them—encourage this pervasive obsession with domesticity. The present “retreat” into home life is not, after all, so hard to understand, given the continuing unavailability of socially sanctioned alternatives; nor is it difficult to reconcile the “new” domesticity with an increase in divorce. Easy divorce is a form of social insurance that has to be paid by a society which holds up domesticity as a universally desirable condition: The cost of failure in the pursuit of domestic bliss—especially for women, who are discouraged in the first place from other pursuits—must not be permitted to become too outrageously high. The alternative, therefore, to the present laws is not further liberalization—as it is, one out of five marriages ends in divorce, and it is common knowledge, in any case, that the divorce laws have no effect on the rate of divorce—nor even reform designed to eliminate the “hypocritical” features of the laws, but a general devaluation of marriage.
Those who wish to reform the laws, like Professor Blake, wish “to eliminate entirely,” as a New York lawyer has recently put it, “notions of marital fault” (Henry H. Foster, Jr., in the 1964-1965 issue of the New York County Lawyers Association Bar Bulletin). They argue that the decisive consideration which ought to govern the granting of divorces is whether there is anything left in a marriage worth saving. These proposals are eminently humane, and should be supported; but they do not touch the real trouble—the American obsession with domestic life. Some of them even encourage it. It is possible, of course, that a change in the laws might bring about a more fundamental change in American attitudes. There is now a bill before the New York legislature which would make living apart for two years grounds for divorce. Such a change would indisputably represent a great improvement over the present law which makes adultery the only ground for divorce in New York. What is disturbing is to find reform justified in the name of the sanctity of the family. From the progressive point of view represented by reformers like Pilpel and Zavin, the trouble with our divorce laws is that they serve “as a cover-up for an anarchic system of divorce by mutual consent which fools no one, which thrives on collusion, perjury, and fraud, and which adds up to society’s making no effort to cure its sick marriages or preserve its own basic unity, the family.” But it seems much more likely that contemporary conventions regarding divorce, notwithstanding all the clamor about the “rising tide of divorce” and the decay of the family, have their roots in deep-seated prejudices about the sanctity of home and motherhood on the one hand, and in an underlying despair, on the other, about the innumerable irritations and confinements of the marital condition. The real object of reform—if such matters can ever become the object of reform—ought to be, not the law of divorce as such, but the myth of domesticity, alternately sentimental and cynical, of which the laws and customs surrounding divorce are one of the most curious expressions.
Divorce American Style March 31, 1966