The price tag for cheaters
They didn’t really mean that, did they?
The Legal Genealogist is probably more at home in those old statute books than most folks.
I certainly poke around in them more than most folks do.
But even I am occasionally taken aback.
As I was last night, in preparing for some talks tomorrow (Saturday), at the Irish Family History Forum in Bethpage, New York, when I came across the exact language of one section of New York state law.
It appears in Chapter VIII of the Revised Statutes of the State of New York, published in 1829. That chapter is entitled Of the Domestic Relations. Then it’s broken down into titles, and this is in Title I, Of Husband and Wife. And then you have articles, and this is in Article 3, Of Divorces, dissolving the Marriage Contract.
It’s section 49 of that article, and it reads, in full:
Whenever a marriage shall be dissolved, pursuant to the provisious of this Article, the complainant may marry again during the life time of the defendant; but no defendant convicted of adultery, shall marry again, until the death of the complainant.1
Read that last part again: “no defendant convicted of adultery, shall marry again, until the death of the complainant.”
And even I have to ask myself… they didn’t really mean that, did they?
You see, there was one, and only one, ground for divorce in New York when that statute became law. Starting with the passage of the very first divorce law in the Empire State in 1787,2 and continuing all the way up to an amendment of the law in 1966, effective 1967,3 the single basis for granting a divorce was adultery.
Oh, there were attempts to broaden the grounds, to include things like desertion. Those were all defeated. Repeatedly. In 1813, 1827, 1840, 1849, 1850 and 1855, just for starters.4
When it came to getting a divorce in New York, it didn’t get easier for a long long long time. Instead the law was changed to allow judges to say no to a divorce even if adultery was proved, if it looked like the two sides had connived in getting the evidence, then to make proof of adultery harder, then to require longer waiting periods even in the court process itself.5
It wasn’t until 1967 that New York finally permitted divorce on grounds of cruel and inhumane treatment, abandonment for more than two years, imprisonment for more than three years, and after a legal separation of more than two years.6
So… anybody whose spouse got a New York divorce until 1967 was convicted of adultery — and couldn’t remarry.
That’s what the law said.
But… but… but… did cheaters really not get to remarry?
Really?
Well, um, yeah, actually. They really didn’t get to remarry.
At least not initially.
Not in New York.
You see, the whole notion here was that divorce wasn’t something to be granted lightly, and that those who strayed shouldn’t be free to stray again.
And for more than 100 years, that’s where New York law stood. An adulterer couldn’t legally remarry in New York as long as the spouse he or she had cheated on was still living.
The law was finally changed, in 1879. The courts were then allowed to modify the divorce decree and allow the guilty party to remarry on three conditions: (1) five years or more had passed since the divorce was ordered; (2) the cheated-on spouse had remarried; and (3) the cheating spouse had exhibited “uniformly good conduct” during the intervening years.7
And, yes, people did get around the law, both before and after 1879, by going out of New York to divorce and/or to remarry, which may of course explain why some New York ancestors went missing from New York at various times in their lives.
So for genealogists, understanding this law can help put our ancestors’ actions into context.
But still… for them…
Quite a price to pay for a cheating heart…
SOURCES
- §49, Article 3, Title I, Chapter VIII, in The Revised Statutes of the State of New-York, 3 vols. (Albany, N.Y. : Packard & Van Benthuysen, printers, 1829), II: 146; digital images, Google Books (http://books.google.com : accessed 19 Nov 2015). ↩
- Law of March 30, 1787, chapter 69, 1787 N.Y. Laws 494. ↩
- Law of 27 April 1966, chap. 254, 1966 N.Y. Laws 833, effective 1 September 1967. ↩
- J. Herbie DiFonzo and Ruth C. Stern, 27 Pace Law Review 559, 564 (2007). ↩
- Ibid., at 566. ↩
- Law of 27 April 1966, chap. 254, 1966 N.Y. Laws 833, effective 1 September 1967. ↩
- Law of April 16, 1879, chap. 164, 1879 N.Y. Laws 231; Law of May 19, 1879, chap. 321, 1879 N.Y. Laws 405. ↩
Chasing down circumstances of an ancestor with an 1804 felony conviction, I thought I had read of Civil Death ca. 1799 that among other things dissolved a marriage.
In the statutes I did not find mention earlier than 1809 for felonies in general, and commencing in 1799 for those sentenced to life imprisonment.
This, of course, led to wholesale fraud, where adultery wasn’t there but the parties wanted to divorce. The husband would rent a hotel room and a private detective would supply a young lady. She would partially disrobe, the detective would burst in, take a picture, and everyone would leave.
Participated in by a relative in NY many long years ago. Divorce granted on grounds of “adultery.”
Many unhappy couples did indeed conspire to manufacture evidence of adultery in order to obtain a divorce in NY. The tactic was so well-known that a bungled attempt to use it furnished the plot for “The Gay Divorcee,” the 1934 film in which Fred Astaire courted Ginger Rogers to the tune of Cole Porter’s “Night and Day.”
There was a flip side which genealogists should also be aware of. Couples who wanted to avoid having to air their dirty linen in the public forum of a courtroom would often arrange for one spouse (usually the wife) to take up legal residence in a state with more liberal divorce laws (Nevada was a favorite) just long enough to become legally entitled to file for divorce as a resident of that state. As soon as the divorce became final, the plaintiff would then move back to NY, which would be required by the full faith and credit clause of the US Constitution to honor the other state’s judicial decree even though there had been no mention of adultery.
Yep, connivance was common, and as noted folks left the state all the time at just the right time to get that divorce and/or remarriage.
I wonder if this has something to do with why my paternal grandfather moved to New Jersey from New York at the time he and my grandmother separated. Very interesting. Thank you!
Very likely the reason, Elizabeth! Good thinking!
Not as stringent, but such laws were apparently in effect in West Virginia in 1929 when my ancestors divorced–she, the plaintiff, could not marry “within six months of the date of this degree” and he, the defendant, could not marry within three years, with the exception that they could remarry at any time. The evidence of adultery was a child. She never married again; he eventually married the mother of that child.
This made me think of when I first started doing genealogy at a courthouse in Pennslyvania. They had all the usual, Deed, Marriage, Death, Orphan’s Court Documents. There was one though called “Lunatics and Drunkards.” I was very young at the time and The room at the courthouse was like a vault and many days I was the only one in there. I finally mustered the courage to ask the Prothonatory, “What is the Lunatics and Drunkards Docket for? She laughed and said it was the Divorce Docket as at one time these were the only reasons you could get a divorce!” I never checked to see if it was true, but seems that Adultry was not on the list. My husband said adultery was a rather prevalent pastime there. When I moved to this town (very small, rural Eastern town) having grown up in suburban California one of the first things I noticed was that there were as many bars as there were churches. And there were about 7 of each in a town of about 3,000.
I read your comments about the small town in Pa. with a grin. I grew up in a small town in Indiana that had a sign posted as you entered It read: “town on many churches and friendly people”. As I grew older I was always intrigued by the sign as it was somewhat at odds with the fact that we had 6 churches and counting the Eagles, Elks, American Legion hall, VFW hall etc. we actually had 17 bars. Not bad for a town of just 1200 people. In any case when I was 16 I went out to the sign one night and crossed out the word churches and wrote Bars above it I then crossed out the word Friendly and wrote Drunken above it. Well, I had commented on this fact to so many people over the years that it took the Police about 6 hours to show up at my house the next morning. Busted, I got 200 hours of community service. Today it still seems worth it to me. lol
My apologies for boring you with my story.
Spike
That’s hilarious, Kellu! (Though as far back as at least 1785, you could get a divorce for adultery in Pennsylvania…)
When my then-husband and I separated in 1978 in Wisconsin, he moved to Virginia with his, um, girlfriend, whom he planned to marry. A few months later, I moved within Wisconsin for a better job. At that point, Wisconsin allowed no-fault divorce but Virginia allowed divorce only for adultery. In both states, you had to have residence in the county for six months before you could file. Since he was the one committing adultery, he couldn’t file for divorce. So I waited six months and filed. Since we had no children or real property, it was a straightforward divorce. I found a lawyer who simply helped me fill out the required forms, and didn’t have to appear in court with me. He didn’t have to appear in court either. The judge was very sympathetic, though my heart stopped when she commented that “I could ask you the reason you want a divorce, but I won’t.” I’m guessing she had a pretty good idea, and was well aware of the grounds for divorce in Virginia.
Good for that judge!
It was apparently possible by 1947 to get around the ban on remarrying after a divorce in New York. Everts J. Bassenger petitioned to have his restriction against marrying again eliminated so that he could marry my ancestor, Dora (Phillips) Cramer. The order allowing their marriage was granted. Two affidavits stating that Everts J. Bassenger had conducted himself with propriety since the divorce were required. I was very glad to read your post, I had no idea the laws were so strict, and was baffled about why the poor guy would have to file such a petition. Thanks to you I know that this would be indirect evidence that his first wife was still living…
That’s an absolutely excellent use of that as indirect evidence, Johanna! Good for you!
Source: “Bassenger Given Right to Remarry,” The (Syracuse) Post-Standard, 9 September 1947, p. 6 col. 8; image, Ancestry.com (http://interactive.ancestry.com/8130/NEWS-NY-PO_ST.1947_09_09_0001).
That’s really neat. Great find! (I hope you got the underlying divorce case… you know, with adultery being charged, it has to be juicy…)
I should hope so, but is that possible? I had read that divorce cases in N.Y. are sealed for 100 years. Am I misinformed? I would love not to have to wait until 2047… 😉
Drat, you’re right — I keep forgetting how restrictive New York is.
Years ago, I emailed the New York archive where my ancestor’s divorce SHOULD have been (I have the newspaper articles saying “don’t pay her bed and board because she ran off,” and the archivist explained the divorce law and said it was probable that he simply moved and remarried without the divorce — the archivist said it was common, given all the difficulties.
Also, there is a book you might enjoy called “The Great Divorce” by Ilyon Woo, subtitled “A Nineteenth-Century Mother’s Extraordinary Fight Against Her Husband, The Shakers and Her Times.” Excellent book.