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The Evolution of Divorce in America
How Divorce Laws and Gender Norms in Marriage Changed Divorce Rates
In America, about 41% of first marriages end in divorce.(1) Although divorces are common in society today, they used to be completely frowned upon. Reasons for the increase in divorce rates include changes in gender norms, that it does not carry the stigma it used, and divorce laws have become more lenient. Back in the mid 1900’s divorce was seen as threatening to the family unit, especially the way it affected the couple's children. However, now divorce is looked at as beneficial because it is a way for parents to leave a toxic marriage, which has negative impacts in the home. The introduction and reformation of divorce laws has a major impact on the statistics of couples separations. When divorce laws were strict, in order to file for a separation your spouse had to have cheated, been abusive, or left you. It was tough to go through with one, and it was a years-long process. Now, filing for a divorce has become a much easier process, although there are still the issues of child support, alimony, and the splitting up of property, all of which can get messy and mean. In fact, some people may avoid divorce or even get a prenup before marriage in order to not have to pay alimony or deal with giving their ex-spouse money. This paper will analyze how divorce rates have changed over time, beginning with the 19th century to the 20th century. The main factors that have affected divorce rates are gender norms and 1970s divorce law reforms.
Rewinding back to marriage in the 19th century, women were bound to their husbands. Once they got married, they submitted to their man and they depended on them for the rest of their lives. During this period, divorces were difficult to file for because there were strict rules as to who was allowed to file for one and how bad a marriage had to be in order to qualify to separate. Also, divorces were only allowed to be filed by the upper class, and usually by upper class men. In order to qualify for a divorce, one of the spouses either had to have cheated, committed a crime, or been abusive.(2)
In the 1850’s, expectations in marriages as to what the man and woman wanted out of it began to shift. The feminist movement began to change womens prominence in the home, and wives became “passionless,” which caused their husbands to falsely accuse them of infidelity.(3) Therefore, more and more women found themselves wanting to separate from their spouses and found a way to do it through accusing them of “cruelty.” Divorce rates jumped beginning in 1867 on the basis of cruelty, and 80% of the divorces were filed by women.(4) Before the 1850s, cruelty was classified as only physical abuse. Author Robert L. Griswold explained why divorcing on the ground of “cruelty” was controversial claiming, “The family unit was far too important to be dissolved for such capricious reasons: better to endure bickering, coldness, and insensitivity than to threaten the foundation of society.”(5) However, the courts changed “cruelty” to include mental abuse which allowed women to file for divorce more easily. Mental abuse was understood to be detrimental to one’s health, and therefore damaging to a marriage. Divorce rates began to increase as Griswold claims, “From 1867 to 1886, United States courts granted 328,716 divorces; in the next twenty years, the number jumped to 945,625…”(6) Although this may not appear to be a huge spike over the course of twenty years, this jump in numbers was considered substantial considering the stigma surrounding divorce and how it deconstructed the traditional family unit.
Although the feminist movement took off in the 19th century and began to change the outlook on women’s roles in a marriage, women were still submitted to their husbands. Divorce carried a stigma, which would ruin how a woman was viewed by society.(7) Divorce rates were low in the beginning of the 1900s as explained by author Paul M. Levett, “In 1915, for example, only eight of a thousand marriages ended in divorce; and some states, like South Carolina, prohibited divorce entirely. Two years later that number jumped to one in eleven, and a few years after the Great War, more than one-sixth of all marriages ended in divorce.”(8) However, the United States experienced the most drastic increase in divorce rates during the mid-to-late 20th century, with the reformation of divorce laws. The country hit an all time high in 1980.(9)
Change in American culture and societal acceptance increased divorces. In the 19th century the gender norms in the home were that the women would submit to her husband and she did not have any independence. If they got divorced, the woman would be all on her own and society would reject her. As explained by author Paul M. Levett,
...the role of women in America was in a state of transition and turmoil, with their place in society debated in pulpits and parks, bedrooms and barrooms. Twenty years earlier, in Europe, Ibsen's A Doll's House (1879) and G.B. Shaw's Mrs Warren's Profession (1893) had argued for the rights and independence of women; but in America, the theatre, reflecting the views of churchmen, lawmakers, and public intellectuals (mostly male), initially represented women as child-like and in need of a man's guiding hand to protect them from the wiles of the modern world, especially in matters of marriage, since divorce was both ruinous to a woman's reputation and rare.(10)
When the women’s feminist movement took off, it changed all of this. Women became less reliant on their partners, seeking out employment, going on birth control, feeling sexually liberated, etc.(11) Women’s freedom disrupted the control that men put on them in their marriages. Author Anne-Marie Ambert said, “...it has been found that there is a greater likelihood of divorce when the wife is employed, or economically independent and this likelihood increases as the wife’s annual earnings increase. At the same time, the social costs of divorce are becoming fewer and less extreme.”(12)
The Uniform Marriage and Divorce Act, created in the early 1970s by the National Conference of Commissioners on Uniform State Laws, allowed for people to file for divorce under irreconcilable differences.(13) Before the act, couples had to have a convincing reason, such as cheating or abuse and prove it to the court. The Uniform Marriage and Divorce Act also addressed financial settlements between divorcees, allowing for an even split of property.(14) It was beneficial for ensuring equality by adding fairness to alimony, child support, and property ownership.(15) In Section 307 Part III. Dissolution, the act says,
...the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both. In making apportionment the court shall consider the duration of the marriage, and prior marriage of either party, antenuptial agreement of the parties, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, custodial provisions, whether the apportionment is in lieu of or in addition to maintenance, and the opportunity of each for future acquisition of capital assets and income.(16)
Before the introduction of the act, the wife would usually receive the better share, and the courts would make financial decisions on splitting up the finances. Depending on one’s mistakes in the marriage, that would affect the ruling of their financial outcome from the split and much they would receive or not receive.(17) Therefore, before the Uniform Marriage and Divorce Act passed, there was extreme unfairness in financial divisions in a divorce, which would prevent fighting couples from filing for a divorce. However, when the act gave fairness to both the husband and wife in the divorce, that caused more people to get out of their unhappy marriage and seek a divorce.
Figure 1: A clip from the movie Wedding Crashers where Vince Vaughn and Owen Wilson try to help a couple divide up property during their nasty divorce.
A great example of how complicated splitting up property and finances amongst couples in the midst of a divorce is a scene from the movie Wedding Crashers. Actor’s Vince Vaughn and Owen Wilson are divorce lawyers sitting down with their clients deciding how to divy up all their property they had together when married. The couple is bickering back and forth, arguing about who should get the flying miles. The wife brings up her husband's cheating and how he used the miles during the marriage to have his affairs, while the husband claims she is a drug addict. Vaughn and Wilson end up convincing the separated couple to make amends and they finally come to an agreement at the end of the scene that the wife should have the miles. This clip is a perfect example of just how complicated and nasty the process of a divorce can be.
Along with The Uniform Marriage and Divorce Act, contributing to the rise of the divorce rate in the 70s was the passing of the no-fault unilateral divorce laws in 1969.(18) With consensual divorce, both spouses had to come to an agreement that they wanted to split. However, unilateral divorce allowed for one party of the marriage to file for divorce without consent from their partner. Due to this leniency, divorces were easier to come by, which was a contributing factor to the rise of them. In a New York Times article published in 1969, the journalist quotes member Dr. Doris Jonas Freedof the family law committee of the American Bar Association in which she states,
No‐fault divorce has turned out to be a good law. Thanks to no‐fault, people no longer have to go to court to wash their dirty linen in public or to perjure themselves. Now all they have to say is: We tried but the marriage failed, so let's give it a decent burial. No‐fault divorce has helped everybody. In the past, poor people used to desert their families because they didn't have the money to hire detectives to prove fault, and the middle class and the wealthy that doesn't happen anymore and so the law has had to change.(19)
Arguments are made that changes in divorce laws had no direct effect on the rise of divorce rates. However, statistics prove this argument false. According to University of Virginia economist Leora Friedberg, divorce rate spiked from 1960 with 2.2 per thousand people to 5 in 1985.(20) As reported in the graph showing divorce rates from states with unilateral divorce from 1960 to 1990, it is evident that the rate rose significantly beginning at the end of the 1960s when divorce laws began to reform.
Back in the 19th century, divorces were difficult to file for. When women got married, they were bound to their husband. They could only get divorced for very specific reasons and even if they did, it would be damaging to their reputation and the traditional family unit. Between reforms in divorce laws and changes in gender norms, divorce rates saw spikes. Back in the late 1800s, when the feminist movement began to take off, more women sought out divorces from their husbands. Again, in the 1980s there was another spike in divorce rates due to the Uniform Marriage and Divorce Act and no-fault unilateral divorce.
Footnotes
1. “Divorce Statistics and Facts: What Affects Divorce Rates in the U.S.?,” Wilkinson & Finkbeiner, LLP, March 3, 2022
2. Christopher Lasch, “Divorce and the Family in America,” The Atlantic, November 1, 1966
3. Griswold, Robert L. “Law, Sex, Cruelty, and Divorce in Victorian America, 1840-1900.” American Quarterly 38, no. 5 (1986): Page 721.
4. Griswold. “Law, Sex, Cruelty, and Divorce in Victorian America” Page 723.
5. Griswold. “Law, Sex, Cruelty, and Divorce in Victorian America” Page 722.
6. Griswold. “Law, Sex, Cruelty, and Divorce in Victorian America” Page 722.
7. Levitt, Paul M. "Marriage and Divorce in Early Twentieth Century Drama." The Midwest Quarterly 56, no. 2 (2015): 139+. Gale Academic OneFile.
8. Levitt, Paul M. "Marriage and Divorce in Early Twentieth Century Drama."
9. “Divorce: More than a Century of Change, 1900-2018 - Bowling Green State ...,” n.d.
10. Levitt, Paul M. "Marriage and Divorce in Early Twentieth Century Drama."
11. AMBERT, ANNE-MARIE. “The Effect of Divorce on Women’s Attitude Toward Feminism.” Sociological Focus 18, no. 3 (1985): 265–72. Page 265.
12. AMBERT, ANNE-MARIE. “The Effect of Divorce on Women’s Attitude Toward Feminism.” Page 266.
13. Marcassa, Stefania. "Divorce laws and divorce rate in the US" The B.E. Journal of Macroeconomics 13, no. 1 (2013): 997-1035.
14. Marcassa, Stefania. "Divorce laws and divorce rate in the US"
15. Marcassa, Stefania. "Divorce laws and divorce rate in the US"
16. “Uniform Marriage & Divorce Act. Section 307. Part III Dissolution. Section 307 Disposition of Property.”
17. Marcassa, Stefania. "Divorce laws and divorce rate in the US" The B.E. Journal of Macroeconomics 13, no. 1 (2013): 997-1035.
18. Wolfers, Justin. “Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results.” The American Economic Review 96, no. 5 (2006): 1802–20.
19. Johnson, Sharon. “No‐Fault Divorce: 10 Years Later, Some Virtues, Some Flaws.” The New York Times. The New York Times, March 30, 1979.
20. Friedberg, Leora. “Did Unilateral Divorce Raise Divorce Rates? Evidence from Panel Data.” The American Economic Review 88, no. 3 (1998): 608–27. Page 608.
Bibliography
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“Divorce: More than a Century of Change, 1900-2018 - Bowling Green State ...,” n.d.
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About the Author
About the Author
Anna grew up in North Andover, Massachusetts with her parents and brother, Kyle. She grew up dancing and is still a dancer today. She attends Boston University and is majoring in public relations.
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