Part 3 — CHAPTER XVII A CENTURY AND A QUARTER OF DIVORCE LEGISLATION IN THE UNITED STATES, 1776-1903 (continued 3)

The act of 1827 is silent as to limited divorce, which has not since been recognized in Illinois. Full divorce may now be granted by the circuit courts, sitting as courts of equity, when either person (1) was at the time of the marriage and still is naturally impotent; (2) had a husband or wife living at the time of the marriage; (3) has since been guilty of adultery; or (4) wilful desertion for two years; or (5) extreme and repeated cruelty; or (6) habitual drunkenness for two years.[427] A step backward was taken in 1832 through the adoption of a kind of omnibus clause. By proceedings in chancery full dissolution of marriage is authorized (7) for all causes of divorce not provided for by any law of the state.[428] Next, after an interval of thirteen years, on the petition of the aggrieved, comes (8) conviction for felony or other infamous crime.[429] This is followed after the lapse of thirty years more by the sanction (9) of absolute divorce when either person "has attempted the life of the other by poison or other means showing malice."[430]

The tale of causes allowed by the present law of Illinois is thus complete. Separation from bed and board is not provided for by statute. In general, chancery process is required. The circuit courts of the respective counties and the superior court of Cook county (Chicago) are clothed with jurisdiction in divorce controversies.[431]

Michigan became a separate territory in 1805, and seven years thereafter the supreme court was granted jurisdiction in both kinds of divorce.[432] By the act of 1819 marriage may be dissolved for adultery in either spouse, when the husband and wife are inhabitants of the territory, or when the marriage was solemnized therein; as also when the injured person was an actual resident of the territory at the time of the offense, and so remains when the bill is filed. When guilty, the wife forfeits her right of dower. On the other hand, the court may grant her a divorce a mensa, forever or for a limited time, (1) for "cruel and inhuman treatment;" (2) for such conduct on the part of the husband "as may render it unsafe and improper for her to cohabit with him and be under his dominion and control;" or (3) when "he has abandoned her and refuses or neglects to provide" for her support.[433]

A different plan appears in 1832. A divorce from the bond of wedlock is now permitted (1) for impotency, and (2) for adultery. Furthermore, the court, in its discretion, is empowered to grant either person a full or a partial divorce (1) for extreme cruelty, or (2) for five years' wilful desertion. By this act jurisdiction is vested in the supreme court and either of the circuit courts of the territory.[434] A statute of the next year retains all these provisions of 1832, except that the term of wilful desertion, to constitute a discretionary ground, is reduced to three years.[435] Five years later, after Michigan became a state, a divorce is made unnecessary when a marriage is void or when the persons contracting it are below the age of consent. At the same time the grounds of separation are reconsidered. Absolute divorce is now authorized (1) for adultery; (2) for impotence; (3) for five years' desertion; (4) for sentence to imprisonment at hard labor for three years or more; and either a full or a partial divorce, on the petition of either spouse, (1) for extreme cruelty; (2) for three years' "utter desertion;" or (3) on application of the wife, when the husband, being of sufficient ability to provide a suitable maintenance for her, "shall grossly or wantonly and cruelly refuse or neglect to do so."[436] In 1844 extreme cruelty, "whether practiced by using personal violence, or by any other means," was substituted for the corresponding clause in the act of 1838.[437] Next, in 1846 and 1847 came swift changes in the law of desertion, but only in their turn to be swept away in 1848.[438] So in 1851 we reach an act by which the grounds of divorce in Michigan have been determined for half a century.

By the existing law, as then enacted, on application of the aggrieved, a full divorce may be decreed by the court of chancery, or by the circuit court of the county where the parties or one of them resides, for (1) adultery; (2) physical incompetency; (3) sentence to imprisonment for three years or more, no pardon to affect the status of the divorced persons; (4) two years' desertion; (5) when the husband or wife shall have become a habitual drunkard; "and (6) the circuit courts may, in their discretion, upon application as in other cases, divorce from the bonds of matrimony any party who is a resident of this state, and whose husband or wife shall have obtained a divorce in any other state." The same tribunals are authorized, in their discretion, to grant either a limited or a full divorce in favor of the aggrieved for (1) extreme cruelty, "whether practiced by using personal violence, or by any other means;" (2) utter desertion for two years; or (3) on complaint of the wife for the husband's neglect to provide, as by the law of 1838.[439]

Wisconsin, the remaining[440] portion of the region originally governed by the ordinance of 1787, was erected into a separate territory in 1836. Its divorce legislation, which in its general outline is similar to that of Michigan, began in 1838-39, when the district court of each county was given jurisdiction in both kinds of separation. The causes of absolute divorce then recognized are (1) impotence; (2) adultery. Those of partial divorces are (1) extreme cruelty; (2) two years' wilful desertion; (3) habitual drunkenness; (4) abandonment of the wife by the husband, or "his refusal or neglect to provide for her."[441]

In 1849, the year following the attainment of statehood, was adopted a new statute by which the foundation of the present system was laid. By it, as under the present law, a marriage is declared absolutely dissolved without any decree of divorce or legal process whenever either spouse is sentenced to imprisonment for life; and a pardon is not to effect a restoration of conjugal rights. The circuit courts are granted jurisdiction. Both full and partial divorce are provided for. Absolute divorce is allowed for (1) adultery; (2) impotence; (3) sentence of either spouse to imprisonment for a period of three years or more, no pardon working a restoration of conjugal rights; (4) wilful desertion for one year next preceding the commencement of the action; (5) when the treatment of the wife by the husband has been "cruel and inhuman, whether practiced by using personal violence, or by any other means," or "when the wife shall be guilty of like cruelty to her husband or shall be given to intoxication;" (6) when the husband or wife shall have been a habitual drunkard for the space of one year immediately preceding the filing of the bill. To these grounds was added as a cause in 1866: (7) voluntarily living entirely separate for the five years next preceding the commencement of the action.[442] So the law of absolute divorce remains at the present time, all attempts to make insanity a permanent ground having thus far failed.[443]

The history of partial divorce in Wisconsin is soon told. The provisions of the act of 1849 are still in force. The causes of separation from bed and board, forever or for a limited time, there recognized are (1) the fourth, fifth, and sixth grounds of full divorce above specified; (2) extreme cruelty of either spouse; (3) on complaint of the wife when the husband, being of sufficient ability, shall refuse or neglect to provide for her; or (4) when his conduct toward her is such as may render it unsafe and improper for her to live with him. It is expressly declared that a divorce from the bond of matrimony may be decreed for either of the three causes last named, "whenever, in the opinion of the court, the circumstances of the case are such that it will be discreet and proper to do so." From the somewhat awkward arrangement of its provisions, therefore, the general effect of this statute appears to be that a full divorce may be granted for any ground recognized by it, provided the court deems it prudent to exercise its discretionary authority. Furthermore, it must be noted that by the existing law, just as in 1849, the circuit court is empowered to allow separate maintenance when a partial divorce is denied.[444]

We may next pass to the long list of new states in the West and Northwest whose generous boundaries spread over the Mississippi valley, the vast regions of the Rocky Mountains, and the Pacific slope. The course of legislation in Minnesota has run closely parallel to that of Wisconsin, though it is divergent in some important details. In 1851, seven years before the admission of that state to the Union, a statute logically declared bigamous marriages and those within the forbidden degrees, if solemnized in the territory, void without a decree. At the same time, as causes of absolute divorce in favor of the aggrieved were sanctioned (1) adultery; (2) impotency; (3) sentence to imprisonment in the penitentiary after the marriage, no subsequent pardon effecting a restoration of conjugal rights; (4) wilful desertion for one year next preceding the commencement of the suit; (5) cruel and inhuman treatment, whether practiced by using personal violence or by any other means; (6) habitual drunkenness for one year immediately preceding the filing of the complaint. By this act no provision is made for partial divorce.[445] The term of wilful desertion was increased from one year to three years in 1866;[446] but in 1895 the shorter period was restored, so that under the existing law the six grounds of absolute divorce as sanctioned in 1851 are recognized, except that "cruel and inhuman treatment" is constituted a cause, the original explanatory clause being omitted.[447] On the other hand, limited divorce is now provided for. Since 1876, on complaint of a married woman, separation from bed and board is authorized (1) for cruel and inhuman treatment by the husband; (2) for such conduct on his part as may render it unsafe and improper for her to cohabit with him; or (3) for abandonment and refusal or neglect by him to provide for her. The district court of the county where the persons or one of them resides is now vested with jurisdiction in all actions for divorce or for the annulment of marriage.[448]

One of the worst and most characteristic features of American state legislation is seen in the session laws of Iowa, where the statute-maker is perennially engaged in adopting, changing, abrogating, or re-enacting plans of divorce and alimony. The first step was taken in 1838, when the district court of the county where the persons or one of them resides was given jurisdiction on the petition of the aggrieved. The grounds of absolute divorce then allowed are (1) impotence; and (2) adultery. Those of divorce a mensa or of divorce from the bond of wedlock, in the discretion of the court, are (1) extreme cruelty; or (2) wilful desertion for one year.[449] This law was repealed and a new one adopted in the next year. Nothing is now said of separation from bed and board; but a full divorce may be had by the injured spouse for (1) impotency; (2) bigamous marriage; (3) adultery; (4) one year's desertion; (5) felony; (6) habitual drunkenness; (7) cruel treatment; (8) indignities.[450] Three years later this statute in turn gave place to another by which the same causes are sanctioned, except, under the sixth head, it is provided that "said habitual drunkenness shall be contracted after marriage."[451] In 1846, however, this proviso was dropped; and at the same time an "omnibus" clause was sanctioned. A full divorce may now be granted (9) "when it shall be made fully apparent to the satisfaction of the court, that the parties cannot live in peace and happiness together, and that their welfare requires a separation."[452] The eighth ground was dropped in 1851, and at the same time it was again specified under the sixth head that drunkenness shall have become habitual after marriage.[453]

Thus matters stood until 1855, when the worthy legislators managed to put the law in a curiously awkward shape. It was then decreed that "hereafter no divorce otherwise than from bed and board shall be granted except" (1) where either spouse shall commit adultery; (2) be convicted of felony; (3) was impotent at the time of the marriage; or (4) wilfully deserts the other for the space of three years. "In all other enumerated causes heretofore deemed sufficient"—continues the statute—"no divorce otherwise than a divorce from bed and board shall be granted."[454] This scheme was short-lived. An act of 1858 revives the law as it stood in 1851, except that the term of wilful desertion was extended to two years and the omnibus clause was omitted, thus leaving seven grounds of petition in force.[455]

The present law of Iowa governing the causes of divorce took its rise in the code of 1873. The district court in the county where the plaintiff or defendant resides still has jurisdiction. Limited divorce is not recognized, but "it appears that courts of equity will grant alimony without divorce to a wife where she is separated from her husband because of his misconduct, though no express statutory provision is found authorizing such proceeding."[456] A full divorce may be decreed against the husband (1) when he has committed adultery subsequent to the marriage; (2) when he wilfully deserts his wife and absents himself without reasonable cause for the space of two years; (3) when after marriage he is convicted of felony; or (4) becomes addicted to habitual drunkenness; or (5) when he is guilty of such inhuman treatment as to endanger the life of his wife; and against the wife, for the five causes just enumerated, and also (6) when at the time of the marriage she was pregnant by a man other than her husband, unless the husband then had an illegitimate child or children living and the fact was unknown to her.[457]

The divorce legislation of Kansas begins in 1855, the next year after the territory was erected. The grounds on which the aggrieved may secure a complete dissolution of the matrimonial bond are (1) impotence continuing from the time of the marriage; (2) bigamous marriage; (3) adultery; (4) wilful desertion and absence for two years without reasonable cause; (5) conviction of felony or infamous crime; (6) habitual drunkenness for two years; (7) cruel and barbarous treatment endangering life; (8) intolerable indignities offered to the person; (9) vagrancy of the husband.[458] In 1859 this law gave place to another, by which the fifth, eighth, and ninth causes above enumerated were omitted; the term of wilful absence, under the fourth head, was reduced to one year; and habitual drunkenness became a cause, without specification of the time during which it must have existed.[459] The very next year this plan was in its turn superseded. A new act allowed separate alimony without dissolution of marriage, and sanctioned eleven grounds of total divorce. The first four of these are identical with the corresponding numbers in 1855, as modified in 1859. In addition are approved (5) pregnancy of the wife at the time of the marriage by a man other than the husband; (6) extreme cruelty; (7) fraudulent contract; (8) gross neglect of duty; (9) habitual drunkenness; (10) sentence for crime and imprisonment therefor in a penitentiary, provided complaint be filed during the term of confinement; (11) when one person has secured a divorce in another state or territory, leaving the obligation binding on the other.[460]

The eleventh cause just specified was dropped in 1868. The remaining ten were then re-enacted;[461] and these grounds, without addition or essential change, constitute the law of Kansas at the present time. In this state there is no separation from bed and board. But "the wife may obtain alimony alone from the husband without a divorce ... for any of the causes for which a divorce may be granted."[462] By the constitution, jurisdiction in all divorce actions is vested in the district courts;[463] and the supreme court has authority when suits are brought up on error.[464]

Both kinds of separation are provided for by the Nebraska law of 1856; and a marriage is then declared to be completely dissolved without decree in case of conviction and imprisonment for life. The district court of the county where the married persons or one of them resides is empowered to grant absolute divorce on complaint of the aggrieved for (1) adultery; (2) physical incompetency at the time of the marriage; (3) sentence to imprisonment for three years or more, no pardon effecting a restoration of conjugal rights; (4) two years' wilful abandonment without good cause; (5) habitual drunkenness. The same tribunal may decree either a limited or a full divorce for (1) extreme cruelty; or (2) two years' utter desertion by either spouse; and (3) in favor of the wife, when the husband, being of sufficient ability, shall grossly or wantonly and cruelly refuse or neglect to provide for her.[465] No essential change appears in the statutes until 1875, when imprisonment for life was made a sixth ground of absolute divorce;[466] and so the law of Nebraska remains at the present hour.[467]

Separation from bed and board has at no time been authorized by the laws of Colorado. The district courts have jurisdiction. Full divorce may now be granted in favor of the aggrieved on eight grounds; and in this regard there have been few changes since the first statute of 1861. The present causes are (1) impotence continuing from the time of the marriage or originating thereafter in consequence of immoral or criminal conduct; (2) bigamous contract; (3) adultery; (4) one years' wilful desertion and absence without reasonable cause (5) extreme or repeated acts of cruelty, consisting as well in the infliction of mental suffering as of bodily violence; (6) failure on the part of the husband, being in good bodily health, to make reasonable provision for his family for the space of one year; (7) habitual drunkenness of either spouse for the same period; (8) conviction of felony.[468]

Since the original statute of 1870, in Wyoming, a bigamous contract or a marriage where the persons are related within the forbidden degrees, or where either is insane or an idiot, is void without judicial decree.[469] In that state separation from bed and board has never been sanctioned. Under the existing law, as it has stood since 1882, absolute divorce is allowed either person when aggrieved for (1) adultery; (2) physical incompetence continuing from the time of the marriage; (3) conviction of a felony and imprisonment therefor in any prison, no subsequent pardon effecting a restitution of conjugal rights; (4) wilful desertion for one year; (5) when either husband or wife has become a habitual drunkard; (6) extreme cruelty; (7) neglect of the husband for the period of one year to provide the common necessaries of life, unless such neglect is the result of poverty which he could not have avoided by ordinary industry; (8) indignities rendering the condition of either spouse intolerable; (9) conduct on the part of the husband constituting him a vagrant within the meaning of the law; (10) when before the marriage or its solemnization either person shall have been convicted of a felony or infamous crime in any state, territory, or count[r]y without knowledge of the fact by the other at the time of the marriage; (11) when the intended wife at the time of contracting the marriage or its solemnization is pregnant by any man other than her intended husband, and without the latter's knowledge at the time of the solemnization.

Although there is no limited divorce in Wyoming, the law in certain cases allows separate alimony to be granted to the wife without a formal decree of separation.[470]

The legislation of Utah begins in 1852 with an act so faulty that its consequences have become notorious in the divorce annals of the United States. A vicious residence clause, coupled with a loose requirement regarding notice and an "omnibus" provision among the enumerated grounds of complaint, became in effect a standing temptation to clandestine divorce seekers from outside the territory. It is formally declared that the court of probate of the county of the plaintiff shall have jurisdiction in all petitions, and these are to be made in writing upon oath or affirmation setting forth the grounds of action. "If the court is satisfied," continues the statute, "that the person so applying is a resident of the Territory, or wishes to become one; and that the application is made in sincerity and of" the plaintiff's "own free will and choice, and for the purpose set forth in the petition; then the court may decree a divorce from the bonds of matrimony" against the defendant "for any of the following causes, to wit": (1) impotence at the time of the marriage; (2) adultery; (3) wilful desertion or absence without reasonable cause for more than one year; (4) habitual drunkenness subsequent to the marriage; (5) inhuman treatment endangering life; (6) "when it shall be made to appear to the satisfaction and conviction of the court, that the parties cannot live in peace and union together, and that their welfare requires a separation." Nevertheless, the courts are encouraged to adopt a cautious and conservative policy. They are allowed to defer "their decree of divorce, when the same is applied for, to any specified time, not exceeding one year, when it appears" that a compromise may be made; and "during the time of such deference ... , the bonds and engagements of matrimony may not be violated by the parties." Furthermore, the court is empowered to punish by fine or imprisonment or both any person "who shall stir up unwarrantable litigation between husband and wife, or seek to bring about a separation between them."

This statute was doubtless made in good faith. For, although it remained in force without change for a quarter of a century, it does not appear that the Latter Day Saints showed any strong tendency to take advantage of its glaring defects. But it is not surprising that evil should come of it. The petitioner in a divorce suit need not be a "bona fide resident of the territory. The formal expression of an intention to become a resident was all that was required. The plea of a citizen of any part of the United States that he intended to become a citizen of Utah was entertained equally with that of a regularly domiciled resident."[471] Besides, under the "blanket" provision anything might be alleged in the petition as a ground for action. The natural result was that certain sharp lawyers in eastern cities seized the opportunity to promote clandestine divorce on a large scale. Through their skilful plans and the connivance of local judges, the courts of several counties were converted into veritable "divorce bureaus," so that between 1875 and 1877 there was a surprising increase in the annual crop of divorce decrees. Accordingly, in 1878 the assembly passed a statute which effectually put an end to this anomalous state of affairs. One year's bona fide residence was now required; a decree was forbidden in case of default of the defendant except on legal testimony; better provisions for notice were made; and the "omnibus" clause was abandoned. By this act, separation from bed and board is not provided for; but an absolute divorce, in favor of the aggrieved, may be granted for (1) impotence at the time of marriage; (2) adultery; (3) wilful desertion for more than one year; (4) wilful neglect of the husband to provide for the wife the common necessaries of life; (5) habitual drunkenness; (6) conviction of felony; (7) cruel treatment, to the extent of causing great bodily injury or great mental distress.[472] To these grounds in 1903 was added (8) permanent insanity, when the defendant has been duly declared insane five years before.[473] Furthermore, by an act of 1896 separate maintenance without a decree of divorce is allowed the wife for desertion by the husband or when, without her fault, she is living separate from him.[474]

By an act of 1853 the legislature of Oregon Territory allows divorce petitions presented under oath to be determined by the district court of the county in which the cause occurs, or in which the defendant resides or is found, or in which the plaintiff resides, if in this last case it be either the county in which the parties last cohabited or that in which the plaintiff has resided for six months next preceding the action. Absolute divorce in favor of the aggrieved is permitted on ten grounds. These are (1) impotence continuing since marriage; (2) adultery committed since marriage and remaining unforgiven; (3) bigamous contract; (4) compulsion or gross fraud in procuring the marriage, if a rescission be sought in a reasonable time after removal of the restraint or discovery of the fraud; (5) wilful desertion for two years without reasonable cause; (6) conviction of felony or infamous crime; (7) habitual gross drunkenness contracted since marriage; (8) harsh and cruel treatment; (9) personal indignities rendering life burdensome; (10) six months' voluntary neglect of the husband to provide the wife with a home and the common necessaries of life.[475] This statute was, however, of short duration. In 1854 the third and fourth causes were dropped; bigamous contracts and those entered into through compulsion or fraud being now properly treated as grounds for annulment of void or voidable marriages. The remaining eight causes recognized in 1853 were retained, except that the term of wilful desertion was reduced to one year; and a period of one year was likewise fixed in case of voluntary neglect to provide.[476] Eight years later neglect to provide ceased to be a legal ground of complaint. At the same time it was enacted that "habitual gross drunkenness" to constitute a cause must exist for two years immediately before the commencement of the suit; and the period of wilful desertion was extended to three years.[477]

The law governing the grounds of action, as it still exists in Oregon, took its present form in 1887; and, with the exception of the one clause omitted in 1862, it is practically the same as it was established in 1854. Separation from bed and board is not recognized. The circuit courts, sitting at least twice a year in each county, have jurisdiction. A full divorce may be obtained on petition of the aggrieved for (1) impotence; (2) adultery; (3) conviction of felony; (4) habitual gross drunkenness contracted since marriage and continuing for one year prior to the commencement of the suit; (5) wilful desertion for the period of one year; (6) cruel and inhuman treatment or personal indignities rendering life burdensome.[478]

The divorce laws of Washington have been remarkably free from violent changes. The current of legislation has run smoothly along. Separation from bed and board has never been provided for; but eight causes of absolute divorce were recognized by the first territorial act on the subject in 1854. These are (1) force or fraud in procuring the marriage, provided there be no subsequent voluntary cohabitation; (2) adultery unforgiven, if application be made within one year after knowledge of the offense; (3) impotence; (4) abandonment for one year; (5) cruel treatment; (6) habitual drunkenness; (7) neglect or refusal of the husband to make suitable provision for his family; (8) imprisonment in the penitentiary, if complaint be filed during the term of such confinement.[479] In 1860 was added a new ground in the form of an "omnibus" provision. A divorce was then permitted on application of either spouse (9) "for any other cause deemed by the court sufficient, or when the court shall be satisfied that the parties can no longer live together."[480] Thus the law remained without change for twenty-five years; but in 1885 it was provided (10) that in "case of incurable, chronic mania or dementia of either party, having existed for ten years or more, the court may in its discretion grant a divorce."[481] Finally in 1891 the list of grounds for full dissolution of wedlock sanctioned by the present code of Washington was completed. A full divorce is now allowed, in modification of the fifth cause above enumerated, (11) for "personal indignities rendering life burdensome."[482] Originally the district courts were vested with jurisdiction, but since 1889 the superior courts in the separate counties have had authority in all cases of divorce, alimony, and annulment.[483]

In 1851, at the second session of the state legislature, California granted the district courts "within their respective districts" jurisdiction in divorce questions. Nine causes of "divorces from bed and board, or from the bonds of matrimony," were then recognized. But in 1874 three of these—natural impotence, force or fraud, and the marriage of a female under the age of fourteen years without consent of parent or guardian or without ratification by her after reaching that age—were dropped, and thereafter they were rightly treated as grounds for annulment of voidable contracts. The remaining six causes were then re-enacted, with some changes in the prescribed conditions, but only as grounds of absolute divorce. The statute of 1874 is still in force, full dissolution of wedlock, but not separation from bed and board, being sanctioned for (1) adultery; (2) extreme cruelty; (3) wilful desertion; (4) wilful neglect; (5) habitual intemperance; (6) conviction of felony.

After this formal enumeration of the grounds of petition, the first code of California carefully defines the terms employed and prescribes the conditions under which the law shall take effect. Thus "wilful desertion, wilful neglect, or habitual intemperance must continue for one year before either is a ground for divorce." By the original act of 1851, it may be noted, a period of three years was prescribed for both wilful desertion and wilful neglect to provide. In 1853, however, the term of wilful desertion was reduced to two years; and the same time was fixed for wilful neglect in 1870. A period during which habitual intemperance must exist to constitute a cause of divorce was not mentioned until the statute of 1874, by which, in this case as well as in the two others above named, the one-year term was required. By the existing code extreme cruelty is defined as the "infliction of grievous bodily injury or grievous mental suffering."[484] "Wilful desertion is the voluntary separation of one of the married parties from the other with the intent to desert." But when one person is induced by the stratagem or fraud of the other "to leave the family dwelling-place, or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud, and not by the other." In like manner "departure or absence of one party from the dwelling-place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other, is not desertion by the absent party but it is desertion by the other." Separation by consent, with or without the understanding that one of the married persons will apply for a divorce, is not desertion. Moreover, "absence or separation, proper in itself, becomes desertion whenever the intent to desert is fixed during such absence or separation."[485] Wilful neglect is defined as the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or his failure to provide as the result of "idleness, profligacy, or dissipation."[486] Finally, habitual intemperance is described as "that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a cause of great mental anguish" upon the innocent person.[487] In like spirit the reasons for denying a decree are minutely specified by the law. Original jurisdiction in all questions of divorce and annulment of marriage is now vested in the superior courts in their respective counties or other districts.[488]

The California codes and decisions, as is well understood, have been freely adopted or followed by a number of western states. This is especially true regarding divorce legislation. The causes and conditions of action recognized by California law have often been accepted outright.[489] Such, for example, is the case in Montana. By the code of 1895 the same six causes sanctioned by the law of California since 1874 are recognized; while the prescribed definitions, already in part summarized from that law, are almost exactly reproduced. The grounds for dissolution of wedlock are identical, except in their phraseology, with those authorized by the original Montana act of 1865, save that in addition impotence and bigamous contract were then enumerated among the legal causes of divorce. There is no separation from bed and board in Montana; but the wife may be allowed separate maintenance, although a decree of divorce is denied. Since 1865 the respective district courts, on the chancery side, have had jurisdiction in absolute divorce and in all questions of alimony and annulment of voidable contracts.[490]

What has just been said of Montana may be repeated for Idaho, where the California system was adopted in 1887.[491] By an act of 1895, however, incurable insanity was admitted as a seventh cause of full divorce.[492] In this case, as in all the others since 1864, the district court in the county of the plaintiff has jurisdiction. Earlier the laws relating to the causes were somewhat less closely patterned upon the California statutes. The act of 1864 allows a full divorce for (1) impotence at the time of the marriage; (2) adultery committed since marriage and remaining unforgiven; (3) wilful desertion for two years; (4) conviction of felony or infamous crime; (5) habitual gross drunkenness, contracted since marriage, incapacitating the offender from contributing his or her share to the support of the family; (6) extreme cruelty; (7) neglect of the husband for two years to provide the common necessaries of life, unless such neglect is the result of poverty which could not be avoided by ordinary industry.[493] Three years later the California law, as it then stood, allowing nine causes of full divorce, was adopted, except that the terms of habitual intemperance and wilful neglect were each fixed at two years, and a period of one year was made sufficient for wilful desertion. It should also be noted that this Idaho statute, unlike the contemporary law of California, made no provision for partial divorce.[494] It was superseded in 1875 by a new act[495] which is identical in its provision regarding the grounds of action with that of 1867; and no further change was made until the present California plan was sanctioned in 1887.

The experience of the Dakotas has been very similar to that of Idaho and Montana, so far as the final results are concerned; but the early territorial legislation was often clumsy in form, vicious in character, and subject to frequent and violent changes. The original act of 1864 grants the several district courts jurisdiction in petitions for absolute dissolution of marriage on suit brought in the county where the persons or one of them resides, for (1) adultery; (2) impotence; (3) imprisonment in a penitentiary subsequently to the marriage, no pardon effecting a restoration of conjugal rights; (4) cruel and inhuman treatment, "whether practised by using personal violence, or by any other means"; (5) habitual drunkenness for one year next before filing the complaint; (6) "when it shall be made fully to appear that from any other reason or cause existing, the parties cannot live in peace and happiness together, and that their welfare requires a separation."[496] Separation from bed and board is not contemplated by the law of 1864; but in 1866 a new statute appears by which both kinds of divorce are provided for. A full divorce is permitted only on the scriptural ground; but a partial divorce "for life or for a limited time" may be decreed in favor of the aggrieved for (1) cruel treatment; (2) conduct rendering cohabitation unsafe or improper; (3) abandonment, accompanied by refusal to fulfil the matrimonial obligations sanctioned by the statute. If in any case a decree of separation be denied, the court may provide for the separate maintenance of the wife and children by the husband or out of his property.[497] The very next year this act was replaced by another which allows the aggrieved spouse absolute divorce for (1) bigamous contract; (2) wilful absence for five years; (3) adultery; (4) impotency; (5) pregnancy of the wife at the time of the marriage by a man other than the husband without the latter's knowledge; (6) extreme cruelty; (7) habitual drunkenness; (8) imprisonment in a penitentiary anywhere in the United States for violation of the criminal laws;[498] (9) whenever it shall be made to appear that the husband or wife of the applicant "has obtained a decree of divorce in any of the courts of any other territory or state, by virtue of which the party who shall have obtained such decree shall have been released from the obligation of the marriage contract, while the same remains binding upon the other party." Limited divorce is not mentioned by this statute; but, in place of it, a wife may obtain separate alimony for (1) the husband's adultery; (2) his gross neglect of duty; (3) abandonment by him without good cause; (4) where there is a separation in consequence of his ill-treatment; (5) his habitual drunkenness; or (6) his confinement in any prison in the country, or for any crime warranting such punishment in the territory.[499]

Only four years elapsed before the restless lawmaker was again at work. By an act of 1871 a divorce from bed and board or from the bonds of matrimony may be granted (1) for impotence at the time of marriage; (2) "when the female at the time of the alleged marriage was under the age of fourteen years, and the alleged marriage was without the consent of her parents, or guardians, or other persons having the legal custody or charge of her person; and when such marriage was not voluntarily ratified on her part" after the attainment of that age; (3) for adultery; (4) for extreme cruelty by the infliction of grievous bodily or mental suffering; (5) for habitual intemperance; (6) for two years' wilful desertion; (7) for having the ability to provide and failure so to do on account of idleness, profligacy, or dissipation; (8) "when from threatening words or acts, the weaker party feels in danger of bodily injury;" (9) when the consent was obtained by "force, fraud, intimidation, deception, or influence of stronger minds;" (10) for conviction of felony after marriage.[500] Here matters rested until 1877, when the California system, including the six causes and the careful definitions of the code, was adopted.[501] This plan without change is retained in the existing laws of South Dakota;[502] as also in those of North Dakota, except that between 1899 and 1901, following the lead of Idaho, incurable insanity for two years was admitted as a seventh ground of absolute divorce.[503] In neither of these states is partial divorce recognized. The district courts in North Dakota still have original jurisdiction; while in South Dakota authority is vested in the circuit courts within the respective circuits or their subdivisions.[504]

Nevada has likewise closely followed the example of California. Separation from bed and board has at no time been provided for. Bigamous marriages and those within the forbidden degrees of consanguinity are void without decree or other legal proceedings.[505] But since 1875, with one exception, the grounds of absolute divorce have been practically the same as those prescribed by the California code, although they are differently expressed, and there are not the same minute provisions regarding the application of the law and the conditions of action. On complaint of the aggrieved the courts are now authorized to dissolve the bonds of wedlock for (1) impotence at the time of the marriage continuing to the time of divorce; (2) adultery since marriage, remaining unforgiven; (3) wilful desertion for one year; (4) conviction of felony or infamous crime; (5) habitual gross drunkenness, contracted since marriage and incapacitating the offender from contributing his or her share toward the support of the family; (6) extreme cruelty; (7) neglect of the husband for the period of one year to provide the common necessaries of life, unless such neglect is the result of poverty which could not have been avoided by ordinary industry. Thus the laws of Nevada regarding the causes of divorce have been remarkably free from change; for the statute of 1875 in this regard is identical with the original act of 1861, except that by the latter the terms of wilful desertion and wilful neglect to provide are each fixed at two years.[506]

For Alaska the act of Congress does not authorize partial divorce; but marriage may be dissolved for (1) impotency; (2) adultery; (3) conviction of felony; (4) two years' wilful desertion; (5) "cruel and inhuman treatment, calculated to impair health or endanger life;" or (6) habitual gross drunkenness contracted since marriage and continuing one year before the suit.[507]

By the law of Hawaii both kinds of divorce are provided for. Separation from bed and board forever or for a limited time will be granted when either spouse has been guilty of (1) excessive and habitual ill-treatment; or (2) habitual drunkenness; and (3) to the wife for the husband's neglect or refusal to provide her with the necessaries of life. At any time, on joint application of the persons, with satisfactory evidence of reconciliation, the decree of separation may be revoked by the court. According to a unique scheme, the grounds of absolute divorce are arranged in two groups: (1) A marriage will be dissolved, on petition of the aggrieved, when either consort has (a) committed adultery; (b) is guilty of three years' wilful and utter desertion; (c) has been sentenced to imprisonment for life, or for seven years or more, no pardon effecting a restitution of conjugal rights; or (d) has contracted "the disease known as Chinese leprosy, and is incapable of cure." (2) When one of the married persons has been guilty of (a) extreme cruelty; or (b) habitual drunkenness; and (c) when the husband, being of sufficient ability to provide suitable maintenance for his wife, neglects or refuses so to do. But it is especially enacted that if the person applying for a decree "shall not insist upon a divorce from the bond of matrimony, a divorce only from bed and board shall be granted." Jurisdiction is vested in the circuit courts of the circuit where the persons last cohabited as husband and wife; but no divorce for any cause will be allowed if they have never so lived together in the territory.[508]

c) Remarriage, residence, notice, and miscellaneous provisions.—It has been found convenient in the preceding section to trace throughout the period the development of the New York law regarding the remarriage of divorced persons. By the original statute of 1787, it thus appears, the guilty defendant is forever prohibited from marrying again. Under the acts of 1813 and 1827-28 the restriction is limited to the lifetime of the innocent former spouse; and this rule is retained in the present law, although in harmony with the practice elsewhere widely prevailing, the parties to the action are at liberty to renew their matrimonial vows. The defendant, however, may marry again in case the court in which the judgment is given "shall in that respect modify such judgment, which modification shall only be made upon satisfactory proof that the complainant has remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good."[509] At no time, apparently, has any legal check been put upon the immediate remarriage of the successful plaintiff after final decree; and a way has been found by which the guilty defendant may at once contract further wedlock through evasion of the statute. In 1881 the precedent established by Massachusetts in 1829 was followed by the New York court of appeals. It was then decided that when a husband who has been divorced in New York for his adultery "goes into another state for the purpose of evading our law, and there contracts a second marriage during the lifetime of his former wife, and immediately returns to and resides within this state, such second marriage is, nevertheless, valid, and the issue thereof legitimate."[510] On the other hand, it is held that the restraint applies to the remarriage of divorced persons even when the divorce was granted in another state. Thus dower was "denied on a showing that the deceased husband, while a resident of Massachusetts, had been divorced from his wife for his fault and later had removed to New York and married the plaintiff while his former wife was living. It was held that the New York statutes governed whether the divorce was granted in that state or not, so long as the marriage was celebrated in New York."[511] But elsewhere the courts have taken the opposite position, holding that the restraint on remarriage applies only to divorces granted in the state where it is imposed.[512]

During the century the statutes of New Jersey have in effect, though not expressly, allowed either person absolute freedom of remarriage after divorce.[513] A different rule has been followed in Pennsylvania and Delaware. By a law of the former state in 1785, "he or she, who hath been guilty of the adultery, may not marry the person with whom the said crime was committed, during the life of the former husband or wife."[514] This provision is still in force; and, except in the single case specified, the law of that state puts no restriction whatever upon the remarriage of either person after a decree dissolving the marriage tie. Since 1832 with respect to remarriage the law of Delaware has in substance been identical with that of the sister-commonwealth, except that the prohibition of marriage with the paramour is not confined to the lifetime of the former spouse.[515]

By their complete silence on the subject the statutes of Ohio appear always to have allowed either person entire freedom of remarriage after divorce. Since 1831 the same liberty has been expressly granted by the laws of Indiana;[516] except that when the defendant has been "constructively" summoned without other notice than publication in a newspaper, the person obtaining a decree of divorce is not permitted to marry again until the expiration of two years, during which period the judgment may be opened at the instance of the defendant.[517] But by the original act of 1818 the offender is not released from the bonds of matrimony while his former spouse is living.[518] This restriction is maintained by the statute of 1824, unless the court in its discretion, "judging from the circumstances of the case," shall expressly grant a release.[519] In 1825 the legislature of Illinois required the court in a decree of absolute divorce to prohibit the offender from remarrying within two years.[520] After 1827 this provision was dropped;[521] and at present Illinois, like New Jersey, through the remission of the penalty for bigamy allows entire freedom in this regard.[522] Michigan began with a severe rule. The territorial enactment of 1819 forbids the defendant adulterer to wed again until the complainant be actually dead.[523] This provision was not long retained; and the existing statute permits the court to decree that the person against whom any divorce is granted shall not marry again within any period not exceeding two years.[524]

The legislation of the newer states of the Mississippi valley and the Pacific slope discloses the same lack of harmony in dealing with the question in hand. By the laws of Wyoming, Utah, and Nevada either spouse, whether guilty or innocent, is left absolutely free to contract further wedlock as soon as he likes after divorce. At present the same is true of Iowa, although under the early enactments the guilty defendant was forbidden to remarry.[525] In Kansas, by a statute of 1855, the guilty person is restrained from marrying again during five years unless so permitted by the terms of the decree.[526] Between 1859 and 1881 entire freedom was allowed.[527] Subsequently in that state it has been "unlawful for either party ... to marry any other person within six months from the date of the decree of divorcement," or, if appeal be taken, "until the expiration of thirty days from the day on which final judgment shall be rendered by the appellate court." Marriage in violation of this statute is declared bigamy and void.[528] Nebraska since 1885, Oregon since 1862, Washington since 1893, and Minnesota since 1901, have each interdicted remarriage within the same period of six months after a decree of divorce.[529] In Idaho since 1903 the term is "more than six months;" while in North Dakota since 1901 it is but three.[530] Since 1893 Colorado has gone farther, requiring in such a case a delay of one year.[531] The same delay is required in Wisconsin since 1901;[532] while in Montana, since 1895, the innocent person must needs wait two years and the guilty person three years before renewing the marital bond with anyone save the former spouse.[533] South Dakota, when the cause is adultery, still refuses, as in the territorial stage, to permit the guilty defendant to rewed during the lifetime of the innocent plaintiff, unless, indeed, with the latter.[534] In Alaska neither party may marry a third person until proceedings on appeal are ended, or if no appeal be taken, during one year, the statutory term for bringing such action.[535]

Until very recently in California no clear restraint was put upon further wedlock after full separation. In 1897, following the example of Colorado, the legislature provided that in case of dissolution a new marriage may validly be contracted by either person only when the decree of divorce has been rendered at least one year before.[536] This amendment, it seems, was designed primarily to remedy an abuse arising in the uncertainties of California law—one often encouraged by careless legislation in the United States. Its purpose, says Judge Belcher in the opinion below cited, "was to correct a great public evil which had become too rife—to put a stop to marriages within the period allowed for the appeal from the decree of divorce, which might be and sometimes had been reversed, with great scandal to the parties who had married again." In the meantime this new and stringent provision has given occasion for still more serious evils originating in the inharmonious laws of adjacent states. The statutes of Nevada, whose borders are within easy reach of San Francisco, have not fixed a period within which divorced persons may not contract further wedlock. As a result, Reno has become the Gretna Green of California couples who there seek to evade the interdict of their own law. Whether a person who retains his domicile in California may contract a valid marriage in Nevada within less than one year after having been divorced in the former state is a question regarding which the decisions of the superior courts long contradicted one another.[537] But the supreme tribunal has just determined[538] that California in this regard is to take her place by the side of New York and Massachusetts, whose example Washington had already followed.[539] To overcome the effect of this decision, the legislature has enacted that if in any case the court "determines that a divorce ought to be granted an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce." After one year has expired, on its own motion or the motion of either person, the court "may enter final judgment granting the divorce," unless action on appeal or on a motion for a new trial is pending. "In no case can a marriage of either of the parties during the life of the other be valid in this state, if contracted within one year after the entry of an interlocutory decree." But this legislation,[540] it is believed, will be declared unconstitutional by the supreme court.[541]

Expressly or by implication the divorced couple are excepted from the restraint, and permitted to rewed in Alaska, California, Colorado, Idaho, Kansas, Montana, New York, Oklahoma, Oregon, South Dakota, Vermont, and Washington. On the question whether, in the absence of statutory authority, such remarriage of the divorced persons comes within the restraint, the decisions of the courts are conflicting.[542]

All of the twenty-six states under consideration have prescribed rules or conditions regarding the residence of the plaintiff in divorce suits. In nearly every instance a definite term of previous residence in the state, or in the state and in the county, of the action is fixed. This term varies from six months to three years, one year being the prevailing period. In the West the requirements in this regard are not in general so rigid as in some eastern and southern states; but during the past two decades encouraging progress has been made.

The law of New York governing residence has in the preceding subsection already been presented. A fixed term is not prescribed, except that in cases of partial divorce, when the marriage was solemnized outside the state, the persons must have "continued to be residents" of the state for at least one year, and the plaintiff must be resident at the time the action is commenced.[543] Delaware has not fixed a definite period of residence; but no divorce from the bond of matrimony will be decreed when the cause assigned therefor in the petition occurred out of the state and the "petitioner was a non-resident thereof at the time of its occurrence, unless for the same or like cause such divorce would be allowed by the laws of the state or country in which it is alleged to have occurred."[544] Delaware, like Maine and Massachusetts, has attempted to prevent clandestine divorce through evasion of the laws. "When any inhabitant ... shall go into any other jurisdiction to obtain a divorce for any cause occurring here; or for any cause which would not authorize a divorce by the laws of this state; a divorce so obtained shall be of no force or effect in this state."[545] The statute of New Jersey gives the court of chancery jurisdiction in actions for divorce when either the complainant or defendant is an inhabitant of the state "at the time of the injury, desertion, or neglect;" when the marriage took place within the state, and the complainant is an actual resident at the time the injury arose, and at the time of exhibiting the bill; when the adultery occurred within the state and either spouse is a resident thereof at the commencement of the suit; or when one of the persons, at the time of filing the bill and for the term of two years during which the desertion shall have continued, is a resident of the commonwealth.[546] When the cause is adultery committed outside the state, three years' previous residence on the part of either the complainant or the defendant is always required.[547]

A term of twelve months' previous residence was established by Indiana in 1831.[548] This was increased to two years in 1838, regardless of the place where the alleged cause of divorce occurred.[549] A period of one year was again adopted in 1849.[550] Three years later the law was still further relaxed by making bona fide residence in the county of the action sufficient to warrant a petition.[551] In 1859 the one-year term was once more restored,[552] only to yield in 1873 to a bona fide residence of two years in the state and six months in the county; and this provision is still in force.[553] The legislation of Michigan shows similar vicissitudes. The act of 1819 allows an absolute divorce for adultery when the parties are "inhabitants" of the territory, or when the marriage was solemnized therein, and the injured person is an actual resident at the time of the offense and at the time the complaint is filed.[554] In 1832 a residence of three years was fixed for the plaintiff in both full and partial divorce;[555] but in 1838 the term was reduced to two years, and to half that time in 1844.[556] The period of one year is still sanctioned when the cause of action occurs within the state. By the careful act of May 26, 1899, no decree of divorce will be granted in any case unless (1) the plaintiff has resided in the state for one year preceding; or (2) the marriage sought to be dissolved was solemnized in the state and the plaintiff has since resided therein to the time of the petition. Furthermore, in no case will a decree be granted unless (1) the defendant is domiciled in the state when the petition is filed; or (2) was so domiciled when the alleged cause for the action arose; or (3) when he voluntarily appears at the trial, or is brought in by publication, or has been personally served with process or notice. On the other hand, when the cause of action occurs outside the state, a divorce will not be allowed unless the complainant or the defendant shall have resided in the commonwealth for two years immediately before the filing of the petition. If the defendant is not domiciled in the state at the time of commencing the suit, or when the alleged cause arose, before a decree will be granted the complainant must prove that the parties have actually lived and cohabited together as husband and wife within the state, or that the complainant has there resided in good faith for the two preceding years.[557]

Since 1785 Pennsylvania has required that the plaintiff in a suit for absolute divorce must be a citizen of the state and a resident therein at least one whole year before the action is begun.[558] The one-year term is prescribed likewise in Ohio, except when the action is for alimony alone;[559] in Illinois since 1827, unless the offense or injury complained of was committed in the state, or while one or both of the persons resided there;[560] in Minnesota since 1851, except when the suit is on the ground of adultery committed while the plaintiff was a resident of the state;[561] in Wisconsin since 1838-39, except when the cause is adultery similarly committed, or when the marriage was solemnized in the state and the plaintiff resided there from the time of such marriage to the time of bringing suit, or when the wife is plaintiff and the husband has resided in the state for one year preceding the commencement of the action;[562] in Iowa since 1838, "except when the defendant is a resident of the state served by personal service;"[563] in Colorado since 1861, unless the application is made upon "grounds of adultery or extreme cruelty when the offence was committed within the state;"[564] in Kansas since 1855;[565] in Utah since 1878;[566] in Montana since 1865;[567] in Washington since 1854;[568] in Oregon since 1862;[569] in California since 1891;[570] in North Dakota since 1899;[571] and in Wyoming since 1901.[572] In Alaska by the federal law of 1903, the plaintiff must be an inhabitant of the district for two years before suit is brought; and the same term had already been prescribed for Hawaii.[573]

Four states are less stringent in their requirements. In Nebraska, since 1856, petition will not be granted unless the plaintiff has resided in the state for six months, except when the marriage was solemnized in the state and the plaintiff has there dwelt since the marriage to the time when the suit is commenced.[574] The same term has been required in Idaho since 1864;[575] while in Nevada, since 1861, the plaintiff must have resided six months in the county where suit is brought, unless the action is begun "in the county in which the cause thereof shall have accrued, or in which the defendant shall reside, or be found, or in which the plaintiff shall reside if the latter be the county in which the parties last cohabited."[576] Until 1899, as in the territorial stage, South Dakota required only ninety days' bona fide residence on the part of the plaintiff. In that year the term was increased to six months; but in no case will a divorce be granted without personal service within the state, or, when the defendant is non-resident, personal service and order of publication "until the plaintiff shall have a bona fide residence in the state for one year" next before the granting of a decree.[577]

The laws of every state in this group contain some provision requiring notice to the defendant when personal service cannot be had. Such notice is given as in equity suits in Illinois and Nebraska; as in ordinary civil actions in California,[578] Idaho, Montana, Oregon, Utah, Washington, Wisconsin,[579] and Wyoming; and in the remaining commonwealths special rules regarding publication, usually in the newspapers, are in force.[580]

The miscellaneous provisions regarding divorce and divorce actions are in character similar to those already mentioned for other states. In California, Hawaii, Illinois, Michigan, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, South Dakota, and Wyoming the legitimacy of the children of the marriage is expressly recognized in case of divorce. Trial by jury in the finding of facts is allowed in Illinois, Nevada, New York,[581] Pennsylvania, and Wisconsin; while in Washington it is expressly denied; and in Colorado the guilt or innocence of the defendant must be determined by the verdict in every case.[582] The statutes of Kansas, Nebraska, Ohio, Wisconsin, and Wyoming permit either consort to be a witness in the case; and by those of Illinois, Kansas, Minnesota, Nevada, Ohio, Oregon, Wisconsin, and Washington the court may authorize the woman to change her name. She is granted this privilege in Alaska only when not the person in fault. In several instances special provision is made for defending the action. According to the Indiana law, "when a petition for divorce remains undefended, it shall be the duty of the prosecuting attorney to appear and resist" the same.[583] In Colorado, when the defendant fails to appear, the court must appoint an attorney who shall secure a fair and impartial hearing of the case.[584] By the law of Oregon the state is constituted a party in such suits, and it is the duty of the district attorney, "so far as may be necessary to prevent fraud or collusion," to control the proceedings for the defense.[585] Washington has a similar law;[586] and in special cases the prosecuting attorney in Idaho and Michigan is likewise required to oppose the granting of a decree.[587] Soliciting divorce business by advertising or otherwise is sometimes prohibited under severe penalty, such being the case in California, Illinois, Indiana, Minnesota, Montana, New York, Ohio, and Washington.[588] Indiana has a unique enactment expressly declaring that a divorce legally granted in any other state shall have full effect in that commonwealth.[589] Everywhere due provision is made for alimony, care of the children, and the adjustment of property rights. There is great variation in matters of detail; but in general the laws of the middle and western states relating to these subjects are very similar to those of New England. For the purpose of the present chapter further notice may therefore be dispensed with. Only in Michigan,[590] Ohio, Illinois, and Indiana, it may be mentioned in conclusion, has any adequate provision been made for the collection and publication of divorce statistics.