Tabloid-worthy as it was, Britney Spears’ 2006 divorce drama doesn’t hold a candle to that of Sarah Wheeler Cope. In 1772, Sarah petitioned for a divorce in Fairfield County, Conn. She claimed her husband, John, had “during the last Winter and since said Marriage went [on] a Voyage to the West Indies, and while he was there he lived a loose, vicious, scandalous, and lewd incontinent Life and had carnal Knowledge there of the Bodies of certain lewd Women and thereby contracted and caught the foul Distemper commonly called the french Pox … and hath communicated the same to the Petr.”
Most people think of divorce as a 20th-century phenomenon and assume legal splits were uncommon in their ancestors’ clay. Not so. Couples have been putting themselves asunder since our forebears stepped foot on American soil. “We see our ancestors as we wish they were – peaceful and loving, rather than as they really were – human and often contentious,” writes Glenda Riley in Divorce: An American Tradition (Bison Books). The Colonial divorce records she cites include the first American couple to end their troubled relationship: In 1639 in a Massachusetts Puritan court, Mrs. Luxford provided evidence her husband, James, had another wife. The court seized James’ property, fined him, set him in the stocks on market day, and then banished him to England.
So you see, divorce wasn’t rare in the past — but it usually was a family secret. We’ll show you how to uncover your ancestral splits and the records they left in their wake.
During our nation’s early history, more men than women sought divorces; after the Revolution, female petitioners outnumbered males. US divorce petitions increased significantly after the Civil War: From 1867 to 1871, 53,574 divorces were granted; the figure rose to 89,284 between 1877 and 1881. Riley found that during the 1880s, divorces reached an unexpected high, with one out of 14 to 16 marriages ending in divorce. Some couples split unofficially due to desertion, or they merely lived separately without the benefit of legal action.
Our Colonial and early national forebears could get a divorce a vinculo matrimonii, which gave both parties the right to remarry, or a divorce a mensa et thoro – a “separation from bed and board,” meaning neither party could remarry. Some Southern Colonies would only grant the latter type of divorce; others didn’t allow divorces at all. Acceptable grounds for ending a marriage, such as desertion, cruelty, adultery, homosexuality, male impotence or bigamy, varied from one colony (later, one state) to the next. Women were usually at a disadvantage, and many stayed in abusive marriages because they risked losing custody of their children.
Until the mid-1800s, divorces were legislative actions in many locales. Some states had dual jurisdiction, meaning both state legislatures and chancery courts heard divorce cases – that was the situation in Virginia, for example, until 1850. Legislative divorce was in effect until 1897 in Delaware, the last state to change over to judicial jurisdiction. When more and more cases came before the legislature, local courts (circuit, superior, probate, family or domestic court) began taking on the petitions.
During the mid-19th century, a few states, including Indiana, Ohio, South Dakota and Utah, gained reputations as divorce mills. Their easy laws and short residency requirements made “migratory” divorce quite popular. Indianapolis, for example, became a divorce hub because of its central location and good railway transportation. According to an 1852 law there, you had only to currently reside in Marion County to file a petition; your signature on an affidavit was sufficient proof of residency. To notify your spouse you wanted to divorce, all you had to do was put a notice in a “weekly newspaper of general circulation” for three weeks. If your spouse didn’t read the paper; he or she might not suspect a thing until receiving a copy of the decree. And in Indiana, such divorces in absentia were irrevocable.
In case of a migratory divorce, you’ll want to investigate divorce laws in your ancestor’s state as well as those nearby. For an overview of each state’s divorce laws and courts with jurisdiction, see The Hidden Half of the Family: A Source book for Women’s Genealogy by Christina Kassabian Schaeffer (Genealogical Publishing Co.).
Not every petition resulted in a divorce decree (see definitions of common divorce terms in the box above); sometimes only a third of petitions were successful. For example, between 1777 and 1785, the Pennsylvania legislature investigated 35 divorce petitions, but approved only 11. North Carolina considered 20 petitions in 1810, but allowed only one divorce. And between 1797 and 1833, Tennessee granted 111 divorces out of 426 petitions. Even unsuccessful petitions generated records, so your “happily married” great-great-grandparents might be on the books as having sought a divorce.
Signs of trouble
Don’t rely on family stories to clue you in to a potential divorce. Rocky marital relationships are often one of those skeletons no one talks about. I recommend looking for divorce cases for every couple — it’s certainly paid off for me. I had no reason to suspect George and Elizabeth Hopkins had a bad marriage, but since their county’s divorce records were microfilmed, it was easy to check them while I was at the Family History Library (FHL) <www.familysearch.org>. Lo and behold, Elizabeth filed for a divorce in 1872. She told the court “since the [Civil] war the defendant has become an habitual drunkard and has become very violent toward your petitioner and toward the children that he is wasting his prosperity in drinking… That the defendant abused his children in such a manner that bruises remained upon them for a week.” No further papers indicate the divorce was granted, and the couple still resided together in 1880.
As you research, keep an eye out for hints of marital discord in such common resources as:
• Newspapers: Men sometimes published notices in newspapers repudiating their wives’ debts. You also might find newspaper notices seeking runaway spouses, or ads or legal notices stating a couple was in the midst of a divorce. Usually, these are the kind of notices you come across by chance, when you’re researching your ancestors’ local paper for some other article.
• Probate and orphans court records: Look for custody cases resulting from a spouse’s abandonment of the family. Papers committing a spouse to an insane asylum should prompt you to check for divorce records citing insanity as grounds.
• Censuses: If a spouse turns up missing in a census, it doesn’t necessarily mean he or she died. Keep looking – the spouse may be living elsewhere, with or without a new mate.
• Military pension files: The Pension Bureau wanted to prevent women from collecting widows’ pensions for more than one husband, so it required detailed information about marriages and divorces. Professional genealogist James W. Warren gives an example: “Michael Warren of Johnson County, Ark., served with the Arkansas Second Infantry in the Civil War, and later collected a military pension,” he says. “When [Michael] died in 1911, his wife applied for a widow’s pension. Her application included a certified copy of the divorce decree that had dissolved her first marriage nearly 30 years earlier.” The papers listed her maiden name, Mary Ann Hatfield, and the name of her first husband.
Perhaps your ancestor was blissfully wed and never filed for divorce – but he may have served as a witness or testified for a relative, friend or neighbor who did. After all, divorces of yesteryear, just like modern ones, could get pretty ugly. A couple’s friends, neighbors, relatives and even children might be called to give testimony. A witness’ name, age, relationship to the couple, and residence was recorded, too.
As you might imagine, divorce records are fascinating. Sometimes they’re filled with juicy tidbits you won’t h d anywhere else, giving an intimate look at a relationship gone awry. They can reveal quite a bit of information on women in particular. Take a look at this divorce abstract from Donald M. Schlegel’s Franklin County, Ohio, Divorces Before 1870 (Columbus History Service):
Isaac D. Pounds v. Charlotte F. Pounds. April 1, 1851: married at Columbus on May 5, 1841, to Charlotte F. Tupper; he left for California on Feb. 19, 1849, intending to return in about eighteen months; he had previously moved his wife and three children to Loudenville in Richland County where his mother resides and left them there with abundant means of support; he arrived back in Columbus on Oct. 10, 1850, and found that Charlotte had moved back here; adultery; she abandoned the children and residence in Columbus in a state of pregnancy and went to parts unknown shortly before his arrival; the children he found scattered among different families. Granted divorce and custody, June 2, 1851.
As for genealogical data, divorce petitions commonly provide the date the couple married or the length of the marriage, the wife’s maiden name, and names and ages or birth dates of the couple’s children. They may include an inventory or mention of property the couple jointly owned. Especially for early divorces, a decree states what kind of divorce – a vinculo matrimonii or a mensa et thoro – is granted. It also states whether property needs to be settled and custody or spousal support arranged.
Not many petitions and decrees are indexed online. Rootsweb’s user-contributed Divorce Records index <userdb.rootsweb.com/divorces> lists nearly 6,000 records from selected states and counties, including Florida, Tennessee, Missouri and Pennsylvania. Look for other links on your ancestral state’s USGenWeb pages <usgenweb.org> and by typing the state name plus divorce into the Google search box on Cyndi’s List <cyndislist.com/searchit.htm>.
You’ll probably need to contact your ancestors’ state vital records office or county clerk to find a paper trail. First, consult Where to Write for Vital Records, <www.cdc.gov/nchs/howto/w2w/w2welcom.htm> (click on the state, then look for the divorce records information) to get contact information for the right office. You’ll probably have to pay a fee, as you would for birth and death certificates, and more-recent records might be restricted for privacy reasons. Older records may have been moved to the state archives.
Next, try the FHL’s microfilm and published abstracts collections. Run a place search of the online catalog on your ancestor’s state or county, and look for a divorce records or court records heading. You can rent relevant microfilm for a fee through a local branch Family History Center (find one using the FamilySearch site). On the film, you may find an index – usually alphabetical by the couple’s surname – followed by the records, arranged alphabetically or chronologically.
In some counties and for some time periods, you may find separate divorce proceeding files; other times, they’re part of the general civil court cases or in minute books. You might have to do some additional sleuthing, however, as divorces may be filed among state and territorial legislative files. I’ve even found a divorce record in a deed book.
Genealogist Barbara de Mare suspected her ancestor Mathew Smith Chapel and his wife, Susannah (Wilcox) Chapel, who’d married in 1815, later divorced. By 1840, Mathew was living with another woman. Susannah showed up in Hartford, Conn., in the 1840 census; Mathew was across the Berkshire mountains in Kinderhook, Columbia County, NY. But de Mare couldn’t find documentation of the divorce in either state, so she broadened her search to surrounding states.
“The next reasonable place to look was Sandisfield, Berkshire Co., Mass., where both Mathew and the couple’s oldest son, Richard Smith Chapel, were born,” de Mare says. “I’d asked experts at genealogical conferences and workshops where to write, and was told divorce records were almost impossible to obtain, but I should try the Boston courts.”
Unsure whom to contact, de Mare happened to be on a genealogy mailing list that mentioned the name and address of the archivist of the Supreme Judicial Court of Massachusetts, Berkshire division — so she wrote. “Imagine my surprise when she sent me an e-mail a few days later, informing me she had the records, and would send them for $3.”
Sure enough, Susannah lived in Berkshire County, Mass., May 15, 1827, when she petitioned the court to grant her a divorce from Mathew on the grounds he’d committed adultery. The records also revealed Mathew had married the other woman in 1826, while he was still wed to Susannah.
While your ancestors may not have experienced relationship woes as sensational as Susannah Chapel’s, Sarah Wheeler Cope’s or Britney Spears’, chances are good at least one forebear made it as far as petitioning the courts to end an unhappy marriage. There’s an upside for you: Sometimes the records of ancestors’ troubled times reveal the most about their human side to later generations.
From the July 2007 issue of Family Tree Magazine.