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Before the enactment of Alexander Hamilton's divorce law in 1787, nonjudicial divorces had been granted in New Netherlands, under the "Duke's Laws", and at different periods by the royal governor, sometimes on grounds other than adultery.
During the period of the Dutch rule of New Netherlands an occasional divorce was granted. In 1655 John Hickes of Flushing presented a petition for divorce to the colonial council alleging that his wife had deserted him for nine years and had procreated five or six children by another man. The council granted him "letters of divorce" and authorized him to marry "some honest maid or widow." The records of Rhode Island show that in 1640 the wife, who had been married to Hickes at age thirteen, had obtained a divorce in Rhode Island. New Netherlands records show two other cases of absolute divorce, one in 1657 for a wife's adultery, and another in 1664 for a bigamous marriage of the husband while in Amsterdam.
After the English conquest of New Netherlands in 1664, divorces continued to be granted sporadically for the next eleven years. The "Duke's Laws" provided that where a husband or wife had been traveling "into any forraigne Parts" and had not been heard from for five years such party might be presumed dead and the other was free to marry, and in another clause indirectly permitted divorce in cases of adultery. The early English governors apparently felt that they had authority to grant divorces. In 1669 a divorce was granted for a wife's adultery and in another case for the husband's impotence. Several other divorces were granted before 1675. In that year the governor apparently decided that assumption of divorce jurisdiction was of doubtful legality and there is no clear evidence of any further divorces being granted in New York for the rest of the colonial period. However, there are indications that governors were receiving divorce petitions as late as 1711. One colonial official writing in 1759 noted that governors had ceased granting divorces since 1688. On January 22, 1787, the New York legislature received a petition from Isaac Gouverneur, Jr., a member of a prominent New York City family, praying for a divorce on the ground of his wife's adultery. The request was referred to a special committee under the chairmanship of Alexander Hamilton. The committee brought in a bill providing for the first general divorce law in New York, limited to cases of adultery, and stipulating that it should not be lawful for the party convicted of adultery "to remarry any person whatsoever" but the innocent party might make another marriage "in like manner as if the party convicted was actually dead." Under the terms of the bill, the chancellor might provide for a jury trial. On March 19, 1787, Governor George Clinton, Chief Justice Richard Morris, and Justice John S. Hobart, members of the council of revision, objected to the bill "as inconsistent with the public good," because of its prohibition on the remarriage of the adulterous party. The realistic view of the council was rejected by the legislature which overrode the council's veto by a vote of 38 to 16 in the assembly and 10 to 4 in the senate. Not until 1879, was the prohibition against remarriage by the guilty party relaxed so as to permit the guilty spouse to remarry if the court modified its decree.
The power to grant divorces was transferred from the legislature to the Court of Chancery by Chapter 69 of the Laws of 1787, in which the preamble recited that it was thought "more advisable for the legislature to make some general provision in such cases than to afford relief to individuals upon their partial representations, without a just and constitutional trial of the facts.
The Council of Revision regarded the latter proviso as unrealistic and too harsh, but the legislature, aware that legislative divorce also was obtainable, overrode the veto. Until early in this century, when the state constitution was amended, legislative divorces were granted, sometimes on grounds other than adultery. In effect, New York made parliamentary divorce the model for judicial divorce, while legislative divorce on grounds other than adultery reflected the grounds for judicial divorce in other jurisdictions.
The 1787 law, however, instead of following precedent or the lead of Protestant reformers in countries other than England, accepted the rule of parliamentary divorce. Reaction against the limitation of judicial divorce to the ground of adultery, while other states broadened their grounds, set in almost immediately in New York.
Chancellor Kent, while objecting to legislative divorce, also decried migratory divorce. Nevertheless, the nineteenth century saw New Yorkers in increasing numbers resorting to migratory divorce since probably one-third to one-half of the total number of New York marriages dissolved each year were dissolved out of state. It also has been estimated that thirty-five per cent of divorces for New Yorkers were migratory divorces. Various states enjoyed popularity as divorce havens depending upon both grounds and residence requirements.
Omnibus grounds plus short residence requirements accounted for their popularity. Later, other jurisdictions began to compete. Rhode Island, Iowa, the District of Columbia, Utah, and the Dakotas, enjoyed a substantial interstate trade in divorce, but after 1908 for several years only Idaho, Nebraska, Nevada, and Texas had short residence requirements. Since the 1930's, Arkansas, Idaho, Florida, and Wyoming and especially Nevada, have been the leading specialists in migratory divorce. In the 1950's Alabama became, and remained for a while, the favorite due to its residence requirements."Quickie Divorce" Scandal in Alabama, The Bench and Bar Act When the Legislature became Stymied, published in 1964 by the American Bar Association. At its peak in 1960, Alabama granted 17,328 divorces, (many of which were to New Yorkers), compared with 9,724 in Nevada.
During the twenties many Americans were divorced in France and Havana and after that the Virgin Islands and Mexico enjoyed considerable popularity. It is noteworthy that the divorce "mill" in Paris was created by American lawyers to cater to wealthy New Yorkers and clients from other states, and that the 'mill" collapsed after it became extremely difficult to get Paris courts to pass upon the American cases. Havana is also said to have been a wealthy divorce resort during the 1930's because only thirty days' residence was required.
A few of the Mexican states became divorce havens after the Mexican constitution of 1917 permitted divorce. In 1933, Chihuahua amended its divorce laws to provide some twenty grounds for divorce, jurisdiction being based upon submission or legal residence acquired by the signing of the municipal register. It is estimated that in 1955, some 4,300 Mexican divorces were granted to Americans.
The first important change in New York matrimonial law occurred in 1813. That year the legislature rejected its commission's recommendation that desertion be made a ground for divorce and instead enacted a judicial separation statute for the benefit of mistreated or deserted wives, which was not extended to husbands until 1880.
In 1827, the legislature rejected a committee recommendation that habitual drunkenness be made a ground for divorce. In 1830 it enacted an annulment statute authorizing annulments for non-age, bigamy, insanity, fraud or force, and physical incapacity.
As early as 1869 and 1970, the New York Times campaigned against fraud, corruption, and divorce rings in New York City. In 1934, the New York Mirror exposed the "unknown blonde" who had been the co-respondent in over a hundred divorce cases and during the daytime was employed as a legal secretary.
Between 1900 and 1933, numerous bills were introduced to reform New York matrimonial law but the only significant enactment was the "Enoch Arden" act of 1922, authorizing decrees of presumed death where a spouse had not been heard of for five years. During the 1930's, Judge Cohalan's determined fight against collusive divorce actions was widely publicized in the New York press.
It had been common knowledge for several years that the situation in New York had resulted in the appearance of a new remunerative occupation -- that of the professional co-respondent. These conditions were brought to public attention on November 30, 1948, when New York District Attorney Frank S. Hogan announced the arrest of members of a "divorce ring' on charges of perjury and subornation of perjury." All in all, the number of decrees dropped about one-third in New York City, but only one-tenth in the upstate counties." The investigation confirmed what had long been suspected, namely, that fraud, perjury, and collusion were rampant in all types of matrimonial actions -- including even those based on the so-called Enoch Arden Law.
Between 1949 and 1956, Assemblywoman Janet Hill Gordon waged a continuous fight for the creation of a legislative commission to study the divorce laws, but when the commission was created in 1956 its mandate was circumscribed and it had no authority to make recommendations relating to grounds for divorce.
Throughout this century, spokesmen for the New York State Catholic Welfare Conference, until the enactment of the Divorce Reform Law in 1966, succeeded in blocking divorce reform, and, usually, when the matter was at issue before the legislature, a majority of Democrats and a minority of Republicans have voted against reform, with most of the support for reform coming from up-state Republicans.
The 1965 Court of Appeals decision in Rosenstiel v. Rosenstiel, made obvious the built-in discriminations of the divorce law of New York, including its policy of recognizing bilateral out-of-state divorces, and became a major factor in achieving divorce reform in 1966.
The 1966 Divorce Reform Law grew out of the 219 page report of the Joint Legislative Committee on Matrimonial and Family Laws, commonly called the "Wilson Committee". The Joint Committee was itself established pursuant to a joint resolution dated June 8, 1965. Besides its report, the Committee sponsored legislation which was introduced at the 1966 legislative session known as the "Wilson-Sutton Bill." Alternative legislation, know as the "Leaders Bill" was proposed by Senators Travia, Hughes, and Brydges. It differed substantially from the Wilson-Sutton measure. Thereafter, compromises were effected between the sponsors of the competing bills and the law which finally was enacted contained features taken from both bills. The crux of the compromise was acceptance of the Conciliation Bureau device and a portion of the Uniform Divorce Recognition Act in return for the new grounds without defenses. The Conciliation Bureau provision in Domestic Relations Law article 11-B was repealed in 1973 and New York's version of the Uniform Divorce Recognition Act was also repealed in 1973.
The significant factors in gaining acceptance for divorce reform were the extensive hearings of the Wilson Committee and strong pubic support manifested throughout the state for divorce reform; the changes in legislative membership and the disestablishment of the establishment occasioned by the 1964 presidential election; the vocal support of liberal Catholics and leading churchmen of all faiths for reform of the old law; the detailed recommendations of bar association committees which were well reasoned and thoroughly documented; and public reaction to the economic and social discrimination between disgruntled spouses that resulted from New York's recognition of Mexican bilateral divorces secured by affluent New Yorkers, (the practical result being that although poor New Yorkers who wanted a divorce might have difficulty getting one at home). Those who could afford it readily obtained divorces in Mexico or some other convenient forum. Since all prior efforts to change New York's substantive law of divorce had met with repeated failure for over 150 years, it was the combination of the above factors that made for success in 1966.
When the legislature in 1966 created additional grounds for divorce it selected from among the most popular American grounds for divorce and also considered the statute (Domestic Relations Law, 200) and case law which had evolved in New York regarding legal separation. It was logical to accept abandonment as a ground for divorce since "desertion" existed as a ground in every other state but North Carolina. In phrasing the abandonment ground the legislature omitted qualifying adjectives such as "wilful," "continued," or "obstinate," which are used in some states, and also left for judicial construction the problem of "constructive desertion."
The legislature also selected "imprisonment" as a ground but instead of referring to felony conviction, or crimes involving moral turpitude, simply referred to the length of imprisonment. In the case of the new "cruel and inhuman treatment" ground, the legislature melded two different grounds for legal separation which had existed under the old law. It used a conjunctive "or" to indicate that either "physical" or "mental cruelty" could be the basis for "cruel and inhuman treatment." It was intended that conduct of the defendant which endangered the mental well being of the plaintiff so as to make it improper to continue cohabitation, as well as conduct endangering the physical well being that made it unsafe to continue cohabitation, should be a ground for divorce. "Adultery" as a divorce ground was redefined so as to include deviate sexual intercourse.
In addition to the "fault" grounds for divorce, the legislative scheme was to add two "no-fault" grounds based upon separation or living apart. The legislative compromise was to accept the "no-fault" theory of separation as a ground for divorce but to add requirements which would vouch for its authenticity.
The sponsors of divorce reform in 1966 made no effort to propose incompatibility as a ground for divorce in New York, although it is a ground in seven other American jurisdictions, because it was believed that it would be futile to do so. The same was true of "irremediable breakdown" which at that time had not been adopted in any jurisdiction in the Western world but later became a ground in many states. Prior experience in New York with reference to the collusion, fraud, and perjury which often accompanied the adultery ground, led a wary legislature to stipulate that the separation must be pursuant to a separation agreement or judgment of legal separation. Thus, there emerged an esoteric ground in Domestic Relations Law section 170(6), i.e., separation pursuant to a separation agreement and the so-called "conversion" ground in subsection (5).
The Divorce Reform Law of 1966 became the source of controversy as adjustments were made to its new declaration of public policy. Almost from the beginning there was dispute as to whether or not the conciliation procedure was worth its cost and inconvenience. The automatic bar to alimony imposed upon a wife by Domestic Relations Law section 236[A] where she was guilty of such misconduct as would constitute grounds for legal separation or divorce, affected judicial construction of the new grounds. Before the Equitable Distribution Law of 1980, there was an improvised and delicate balance of economic justice as between husband and wife fashioned by statute and procedure. Formerly in statute and decision, the wife was favored by the imposition of a unilateral duty to support from the husband, in large measure regardless of their comparative economic circumstances. On the other hand, New York law made it difficult for that obligation to be enforced.
There evolved a sense that even a poor wife deserved support and a share of the property acquired by either spouse during the marriage upon divorce unless she was egregiously unfit or guilty of heinous marital offenses. The Equitable Distribution Divorce Law of 1980 accomplished this.
Where there is no contest, the statutory divorce grounds are mostly of academic interest. Statutory provisions and prior court decisions set parameters for negotiating a settlement. Statutory grounds for divorce and legal precedents have their most immediate impact in negotiation and settlement efforts of the divorce process, because bargaining leverage is very important New York where the dominant characteristic of its divorce law is that in operation it is consensual, and true no-fault divorce is unavailable.