LITIGATE BY DAY, COPULATE BY NIGHT1: THE POLITICS OF 20TH CENTURY

DIVORCE LAW AND THE RISE OF NO-FAULT

Caroline Shanley

In 1974, five years after the first no-fault divorce statute was signed into law in

California2, women from around the country gathered for a conference of National Organization

of Womens (NOW) Task Force on Marriage and the Family. Betty Friedan, one of the many

keynote speakers, described, ordinary women wearing masks so they wouldnt lose the

custody of their children, or be faulted for speaking out in divorce casesspoke their full

bitterness at the reality of the divorce crisis.3 This event represents the culmination of decades

of legal and social shifts away from statutory divorce and towards a no-fault system. Divorce

was controversial as it concerned the family, which had so long been the basic unit of American

society. As Friedan noted, people viewed the unstable status of divorce law as a divorce crisis.

Even earlier historians note that, in the 1950s church leaders, as well as lawyers and

sociologists, began to acknowledge the realities of the divorce dilemma and demand reform.4

This rhetoric, with charged language such as crisis or dilemma, exemplified the exigency of the

issue from both sides. On one side, those in favor of the statutory divorce laws, individuals

viewed the issue as one having to do with the degradation of America society via an attack on the

family. On the other side, those pushing for the liberalization of divorce laws saw the current

legal system as antiquated and oppressive to either party seeking a divorce. Of course, no-fault

divorce eventually came to be the predominant legal feature of divorce law that still holds true

1
Doris Jonas Freed, Henry H. Foster, and Jr. Divorce American Style. The Annals of the American Academy of
Political and Social Science 383 (1969): 71-88.
2
W. Bradford Wilcox. The Evolution of Divorce. National Affairs (2009).
3
Betty Friedan. It Changed My Life: Writings on the Womens Movement. (Cambridge: Harvard University
Press, 1976), 404.
4
Freed, Foster, and Jr. Divorce American Style. 79.
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today. However, the progression towards a no-fault legal system owes credit to the womens

movement of the 1950s and 1960s, and how changing gender politics informally became the

catalyst for such change. This paper will explore how the gradual shifts in divorce law led to

widespread no-fault, from the end of World War II until 1970, and how the womens liberation

movement impacted such changes. Through early second-wave feminist challenges to domestic

institutions, the law and those wishing to undergo the legal proceedings regarding divorce, bent

in a way that caught up with the social and gender revolutions of the mid-twentieth century,

which resulted in the acceptance of a no-fault divorce system.

Criminalized Divorce, Federalism, and the Innocent Plaintiff

States each had their own versions of divorce laws in the first half of the twentieth

century. What individuated one state from the other was on what grounds one could litigate for

divorce, which made divorce more of a criminal offense rather than a dissolved civil contract.

One was entitled to a divorce if, and only if, the other spouse had committed an offense against

the marriage.5 Even with the variety of grounds needed for a divorce, couples would travel far

and wide, using a mixture of means to go through with it. The trend of migratory divorce was

common, but it soon became a problem for the courts, as many states had more liberal divorce

statutes or would simply have a lower burden of evidence. In the case of Williams I, a North

Carolina couple obtained a divorce in Nevada, each got remarried in NV, and sought to return

peacefully to North Carolina. Each prosecuted for bigamy, they took their case to the Supreme

Court, where it was asserted that under full faith and credit, North Carolina must recognize the

divorces.6 This controversial case made divorce not just a familial or moral issue, but one of

federalism and the extent of state authority in family life. In 1945s retrial, the court reversed its

5
Lawrence M. Friedman. A Dead Language: Divorce Law and Practice Before No-Fault. Virginia Law Review 86
(2000): 1497-1536.
6
Williams v. North Carolina, 317 U.S. 287 (1942)
 3

decision in Williams II7, deeming that since Nevada was not a bona fide domicile, North

Carolina was free to ignore the Nevada decrees.8 Dissenting, Justice Hugo Black invoked the

notion of individual liberty, in which the state has no right to restrict: People in this country do

not belong to the state. Our Constitution preserves an area of individual freedom, which the

state has no right to abridge. In this aspect the decision is not confined to a holding which relates

to state as opposed to federal rights.9 This decision was later reversed again in Sherrer10, when

the divorce rate in the U.S. reached its pinnacle for that point in history11.

Obtaining a divorce required many factors and anyone with time and money - and a

cooperative spouse could get a divorce.12 But depending on location, couples were bound to

certain grounds for divorce, their freedom dependent on their ability to choose one avenue of

divorce over the other and ensuring they had the evidence to make a case (see figure 1).

Collusion, or getting a divorce with fake grounds, became commonplace, as over 90 percent of

American divorce cases were uncontested13 by the time the war ended. But another trend was

that in nearly every state, women were plaintiffs much more often than men,14 but it was

wrong to assume from this fact alone that women wanted divorce more than men.15 Certainly a

great deal of women were unsatisfied with their abusive or unsatisfactory marriages, but by

playing to the fragile stereotype of a housewife, it was easier for both spouses to have a winning

case. Divorce law, in practice, forced women into a posture of submission and

7
Williams v. North Carolina, 325 U.S. 226 (1945)
8
Freed, Foster, and Jr. Divorce American Style. 78.
9
Ann Laquer Estin. Family Law Federalism: Divorce and the Constitution. William and Mary Bill of Rights
Journal 16 (2007).
10
Sherrer v. Sherrer, 334 U.S. 343 (1948).
11
Freed, Foster, and Jr. Divorce American Style. 78.
12
Friedman. A Dead Language. 1506.
13
Freed, Foster, and Jr. Divorce American Style. 79.
14
Friedman. A Dead Language. 1524.
15
Ibid. 1524.
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humilityinjured femininity.16 Although divorce law was supposed to posit each spouse as

equal before the law, the partners were by no means on equal footing in society.17 Whether in

the courtroom or in the household, the woman assumed the submissive role. Before the war,

three-quarters of Americans agreed that divorces should not be easier to obtain18, but by the end

of it, lawyers and citizens alike agreed that the misbehavior [the] law recognizes as grounds for

divorce is almost never the actual root of marital discord.19

Figure 1

Source: Monrad G. Paulsen. For a Reform of the Divorce Laws. The New York Times. (New
York, NY), May 13, 1962.

16
Ibid. 1531.
17
Ibid. 1530.
18
Ibid. 1504.
19
Paul W. Alexander. Divorce Without Guilt or Sin. The New York Times. (New York, NY), July 1, 1951.

Post-War Women, First-Class Citizens

The Second World War revolutionized womens roles in the workplace, at home, and in

all social spheres. The lack-of men to fill the need for a workforce created a new niche, one

where women were free to be more financially independent, resulting in a 50 percent increase in

the female labor force.20 Not only were women seen as mere replacements, but also they began

to be treated as first-class citizens where the public and private attitudes had changed from a

condemnation of women leaving their homes...to an outright encouragement of those same

married women to do their part for the war effort.21 The issue was not women being out of the

house and working during the war, but the dissonance that occurred soon after. By the time the

men returned home after 1945, the proportion of married women who worked had jumped to

over 24 percent, up from 15.2 percent in 1940.22 With such a spike of women in the workforce,

particularly married ones, the distinction between public and private life began to change. The

men coming home expected to reassume their positions, and furthermore they expected their

wives to return home. However for married women, they faced a dilemma between shouldering

two burdens; they were struggling to find their proper place in their homes and the outside

world [as workers].23 The changing gender politics following the war gave way to the womens

liberation movement of the 1950s and 60s, one where women [were] for the first time daring to

demand personal happiness as a marital right.24 This focus on individuality, particularly

individual liberty, can even be traced back to Justice Blacks dissent in Williams II, where he

20
Catherine Davidson. All The Other Daisys: Roger Traynor, Recrimination, and the Demise of At-Fault Divorce.
California Legal History 7 (2012): 381-407.
21
Ibid. 392.
22
Ibid. 391.
23
Ibid. 393.
24
Jolande Jacobi. Modern Divorce Tied to Female Freedom. The New York Times (New York, NY), Dec. 25,
1953.
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described the limits of state intervention in the personal matters of private citizens25. Working

women, whether formal members of the womens liberation front or not, challenged the

traditional marriage institution en masse, becoming a huge strain on a legal structure that had

been developed in a simpler time. This reconceptualization of gender roles, and subsequently

roles within marriage, led to legal pressures to change divorce law from a system reliant on

grounds where the woman had to play the injured spouse to one more readily accessible to any

couple for any reason.

Need for Remedy, Backlash to Tradition

With shifting gender roles following the war, it was not only difficult to litigate by

casting the wife as weak and innocent, but the need for no-fault divorce became clearer than

ever. Women sought autonomy, as they were now equipped with more credibility as valuable

members of the American workforce. With that autonomy, the freedom to break the civil

contract of marriage was important. It was not a matter of redefining the grounds needed for

divorce, but reframing divorce in terms of the new roles of marriage, particularly where the

woman is given more financial and social freedom. In the legal community, this was already

occurring to some extent. Although the first official no-fault was not passed until 1969, the

progression of more liberal divorce laws coincided with more radical approaches to gender and

womens liberation. The trend of creeping no-fault divorce26 was exemplified best through

what 20 states had by 1950: living apart as grounds for divorce. Although the living apart

requirement, which could range anywhere between two and five years, still counted as statutory

divorce, it amounted to a confession that some marriages were simply dead in the water,

25
Williams v. North Carolina, 325 U.S. 226 (1945)
26
Friedman. A Dead Language. 1520.
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regardless of whether there were formal grounds for declaring them dead.27 Thus, as the

womens liberation movement grew in size and scope following the war, the law followed suit,

giving way to a quasi-no-fault approach.

It must be noted that these changes did not come without reservations. The family, which

had so long been the pillar of American life before the industrial revolution, was seemingly

under threat by the sheer spike in divorce rates following WWII. An independent woman was

seen as a permanent disruption of the existing social order.28 In a letter to the editor to the New

York Times, one woman pleaded that, [divorced women] know [they have] failed as a mother

because a house without a father is not a home.29 This backlash, invoking the moral significance

of the family the bastion American society, viewed divorce as an absolute last resort. But these

critics continued to view a womans place as the household, and the household alone. Despite

some of this adversity, the creeping no-fault led to widespread no-fault divorce laws across the

U.S. In this sense, the informal shift in gender roles for women that expanded beyond the home

mounted pressure on divorce statutes by demonstrating that in many cases, marriage simply did

not work, and that citizens deserved a right to suspend that civil contract without it being a

convoluted criminal affair.

Until the Second World War, the family was the basic unit of American society. State

laws regulated the family, marriage, and other such affairs. If a divorce was sought, there had to

be a comprehensive case made before the court. Based on unequal gender roles, one where the

man was the breadwinner and the woman was his subordinate, divorce relied on a clean-cut

offense against the marriage. For women and men who simply wanted a divorce, not necessarily

for something hostile or criminal, it was essential to cast the woman as the helpless victim,

27
Ibid. 1526.
28
Davidson. All The Other Daisys. 392.
29
My Heart Bleeds. The New York Times (New York, NY), Oct. 31, 1965.
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further perpetuating her into a subjugated position within society. Even casting the man as the

evil one only helped preserve his masculinity in the end. States had varying grounds needed to

apply for divorce. For this reason, couples would often go out of their way to obtain divorce in

states where the grounds were easier to prove. The Supreme Court was even involved, eventually

deeming that a divorce in one state had to be recognized in another. The end of the Second

World War marked a significant change in gender politics in America, as women desired to keep

their jobs alongside the men returning back from battle. This turned into the womens liberation

movement that challenged patriarchal oppression, but it manifested itself into pressure on the

legal system. Because women were now invaluable members of the workforce, they maintained

a certain level of social, political, and financial autonomy for the first time in history. Where the

divorce system relied on a submissive woman, that woman no longer existed and thus paved the

way for divorce law reform. The journey to no-fault was by no means instantaneous, but the

independence asserted by the womens movement transformed divorce law from a criminal act

to a way to remedy broken marriages.

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Bibliography

Alexander, Paul W. Divorce Without Guilt or Sin. The New York Times. (New York, NY),

July 1, 1951.

Davidson, Catherine. All The Other Daisys: Roger Traynor, Recrimination, and the Demise of

At-Fault Divorce. California Legal History 7 (2012): 381-407.

Freed, Doris Jonas., Foster, Henry H., and Jr. Divorce American Style. The Annals of the

American Academy of Political and Social Science 383 (1969): 71-88.

Friedan, Betty. It Changed My Life: Writings on the Womens Movement. (Cambridge:

Harvard University Press, 1976), 404.

Friedman, Lawrence A. A Dead Language: Divorce Law and Practice Before No-Fault.

Virginia Law Review 86 (2000): 1497-1536.

Jacobi, Jolande. Modern Divorce Tied to Female Freedom. The New York Times (New York,

NY), Dec. 25, 1953.

My Heart Bleeds. The New York Times (New York, NY), Oct. 31, 1965.

Paulsen, Monrad G. For a Reform of the Divorce Laws. The New York Times. (New York,

NY), May 13, 1962.

Sherrer v. Sherrer, 334 U.S. 343 (1948).

Wilcox, W. Bradford. The Evolution of Divorce. National Affairs. (2009).

Williams v. North Carolina, 317 U.S. 287 (1942).

Williams v. North Carolina, 325 U.S. 226 (1945).