During the 60-year period of the American Revolution, divorce was difficult to obtain in most of what became the United States, but by 1815 there were a few changes in law that eased some of the restrictions concerning divorce. Following English tradition, most colonial Americans believed that marriage was sanctified by God and that disrupting a family through divorce was a threat to social order. However, before independence, several colonies allowed their courts of chancery to issue legal separations for a variety of causes, including adultery; bigamy; desertion; and, in some instances, cruelty. These separations often included a support payment but did not allow either party to remarry. New England, a major exception to this trend, had laws allowing divorce that ran counter to English precedent and law. Massachusetts and Connecticut courts granted full divorces with the possibility for remarriage in large part because of the Puritan view of marriage as a legal contract rather than as religious agreement marked by ceremony. Despite Connecticut's liberal divorce practices and the possibility of divorce elsewhere in New England, the total number of divorce cases remained limited, with at most only a handful granted by the courts each year.

Shortly before the outbreak of the Revolutionary War (1775-83), the Pennsylvania assembly attempted to expand its power by authorizing itself to grant divorces in response to a petition to the legislature. Since previously this power had been wielded only by Parliament in England, the Privy Council guarding parliamentary prerogative nullified the law. The Privy Council also instructed all royal governors to veto any future colonial laws concerning divorce.

Independence altered the situation as each state legislature no longer needed to seek the approval of any outside power, and theoretically, legislative petition for divorce was now legal. Although permissible, several state legislatures hesitated to take any action, especially in the South, where, for example, South Carolina refused to pass any divorce decrees during this era. Other southern states acted only in the most extreme circumstances. Maryland in 1790 and Virginia in 1803 passed their first bills for divorce. In both cases the divorce was granted upon the petition of the husband after the wife had an interracial sexual relationship--something slaveholding males did frequently--and gave birth to a mulatto child.

Northern states were more willing to consider divorce laws. In 1785 Pennsylvania passed a statute that gave the state supreme court jurisdiction over divorce with the right to remarry for adultery. Other causes for divorce included willful desertion lasting four years, bigamy, and awareness before marriage of sexual incapacity. Legal separations could be granted for the same reason and also for cruelty. In 1787 New York passed a law that allowed the Court of Chancery to grant a divorce for adultery, and in 1813 the state legalized the practice of granting separations for cruelty and abandonment. Massachusetts regularized its divorce procedure in 1786, allowing divorce for adultery and conviction of a crime with a prison sentence of seven years. Separations were still legal for desertion and nonsupport of the wife. Connecticut continued to have the most liberal divorce policies in the United States but passed a three-year residency requirement in 1797 to prevent people from out of state flooding their courts with divorce cases.

Bibliography:

1) Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1980)

2) Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986)

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