Divorce and Your Ancestors: Tracing the Split
King Henry VIII of England, one of the most famous of history’s divorcees.
Marriage records are a core, basic record type in American genealogy, and one that even the most beginner of researchers usually knows to look for. Useful for creating a timeline, learning a woman’s maiden name, identifying family members, and a host of other possibilities, marriage records are also the most common and oldest type of American vital record in most parts of the country. Though statewide registration of births and deaths did not begin in most states until the early 20th century, marriages have generally been recorded at the county level for much longer.
Still, despite the tendency we have to romanticize the past, not all marriages lasted, and the resulting divorce records can be extremely valuable as a resource for learning more about your family members’ challenges and personalities. However, because they can be tricky to track down, many genealogists neglect them.
A Brief History of American Divorce
When seeking information on this topic as it relates to your tree, it is first important to bear in mind that prior to 1900, divorce in America was rare, and was certainly a much more difficult process than it is today. In fact, it has only been within the last fifty years that the concept of “no fault divorce” has been codified into law, whereby two people who no longer wish to be married can simply dissolve their marriage for essentially any or no reason at all – and this is still not the universal standard in the U.S. even in the 21st century.
In the past, those wishing to divorce had to prove the existence of one or more violations on the part of their spouse to qualify, and the standards of proof were as rigorous as they were arbitrary. Such grounds could include abandonment, adultery, physical abuse, and even impotence (the inability to have children). However, even with a valid accusation on the table, a split was not guaranteed, as judges historically were hesitant to break up families and potentially place a single woman and children in need of public assistance. Sometimes, the judge could rule for a partial divorce, or divorce a mensa et thoro. This enabled a couple to live separately without actually dissolving the union or getting into the issue of custody or support (though it also meant that neither party was eligible to remarry). Only a divorce a vinculo matrimonii was considered total.
There is also evidence that divorces were easier for men to obtain than women in many instances as well, particularly in cases of infidelity. Even abusive husbands could occasionally retain their marital rights if they showed before the judge that they were sufficiently penitent for their past actions. In states throughout the South, divorce was outright illegal for any reason. South Carolina is the most extreme of these, and did not legalize divorce until 1949.
Another important consideration when researching your estranged ancestors is that divorce carried a very heavy social stigma even up through the earlier half of the 20th century. Therefore, it is not at all uncommon to find divorced men and women on censuses and other records referring to themselves instead as widowed or even single if at all possible. This can complicate matters, especially if you’re not certain the pair in question was actually divorced. It is most frequently found when the husband and wife are living in different counties or states where few people would know them or their history.
Where to Find Them
In most cases, divorces were handled at the county level. Each state’s laws were and are slightly different, and today, access to those records is variable as well. While there are an increasingly large number of indexes found online at major genealogy sites, the majority are still found in the holdings of the local county courts or state archives. Privacy laws in some places restrict which portions of the divorce records you may have access to as well. For example, some states or counties will share only the certificate of divorce, which gives the names of the parties and the date of the event. Others are more open and (usually for a fee) will provide the entire packet containing the proceedings and complaints. These are the real treasures.
When determining where your ancestors may have divorced, consider several important clues: where they were living at the time, and the divorce laws of the state in which they lived. Remember, too, that certain states or counties were known for their lax divorce requirements, and that sometimes couples traveled to those places for that specific purpose. Certain 19th century western states and cities (Nevada, South Dakota, and Utah among them) were famous for this, but they were not alone. Indiana, Pennsylvania, and Illinois (especially Chicago) were at various points also known for being relatively permissive by the standards of the age in that regard.
If the divorce records are limited or not available – or even if you just want to be able to narrow the location down – it would also be wise to check the newspapers. In one recent Legacy Tree case in New York City, these were actually the key find. The divorce records themselves were not legally accessible, but because of the prominence of the family in question and the drama of their split, the story was printed in great detail (if a little embellished) in the local society columns. Even if your ancestors were not well-known, divorce was often uncommon enough that the event would usually make it into the papers with some level of detail regarding the reasons, the time taken, and any minor children whose custody was in question.
A divorce article from the Cincinnati Enquirer, dated 29 January 1895. Courtesy of Newspapers.com.
Divorce records, though not always pleasant, can be a fount of personal information not obtainable anywhere else. If you have ancestors who were divorced – or who you suspect may have been – we recommend making the effort to access them where possible.
Let Legacy Tree Genealogists help you with your family mysteries and stories. Contact us today for a free consultation!
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