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It’s about time for an Arkansas divorce

1880s Arkansas Divorce

Reader Jo Arnspiger ran into some language in Arkansas divorce complaints from the 1880s that left her scratching her head. Every document she came across had the same sort of language involving three time frames:

     • first, that one party to the marriage had abandoned the other “more than one year before the commencement” of the divorce action;

     • second, that the person seeking the divorce was a resident “for more than one year” before the suit was filed; and

     • third, that “the cause of divorce occurred and existed in this State and within five years next” before the suit was filed.

What, she wondered, were those time periods all about?

Each of those time frames was critical to the power of the Arkansas courts to grant a divorce, and that’s why each one will be set out in pretty much the same boilerplate-type language in every divorce complaint or court order granting a divorce during that time.

Arkansas in the 1880s was one of the more liberal states when it came to divorce law. Among the grounds for absolute divorce at that time were:

     • (1) impotence;
     • (2) willful desertion “for the space of one year without reasonable cause;”
     • (3) existence of a prior valid marriage;
     • (4) conviction of a felony “or other infamous crime;”
     • (5) habitual drunkenness for a year;
     • (6) “such cruel and barbarous treatment as to endanger the life of the other;”
     • (7) “such indignities to the person of the other” as to “render his or her condition intolerable;”
     • (8) adultery after the marriage; and
     • (9) permanent or incurable insanity after the marriage.1

That second ground — the one-year period for desertion — was among the shorter time frames around the country.2 By adopting that provision, Arkansas made it relatively easy and fast to get a divorce.

But at the same time, Arkansas didn’t want to divorces to be too easy, and it definitely didn’t want to become a haven for people from other states who wanted out of their marriages. So, in order for a divorce to be granted, the law also required the person seeking a divorce to prove:

     • “First. A residence in the state for one year next before the commencement of the action.”

     • “Second. That the cause of divorce occurred or existed in this state, or, if out of the state, either that it was a legal cause of divorce in the state where it occurred or existed or that the plaintiff’s residence was then in this state.”

     • “Third. That the cause of divorce occurred or existed within five years next before the commencement of the suit.”3

So the first requirement was a regular legal residence in the state for at least a year before you could file suit for divorce at all. You couldn’t just move into Little Rock from, say, St. Louis in April and then file suit for divorce in May.

The second requirement was that the cause for the divorce — the desertion, the adultery, whatever ground you were using — had to have some relationship to Arkansas. It was enough if the bad conduct happened in Arkansas or if it happened while the plaintiff was living in Arkansas. But if it happened out of state to a plaintiff living out of state, then it had to be recognized as grounds for divorce in that other state. That kept people from running into Arkansas and staying for a year only to be able to sue for a divorce they couldn’t get in their home states.

The last requirement was that whatever it was that you were complaining about couldn’t be ancient history: it had to have happened (or continued) within the five years before you filed suit. You couldn’t catch the old man foolin’ around in 1880, forgive him, take him back, and then file suit based on the 1880 adultery in 1890.

So, in Arkansas matrimonial law, then — and in the laws of every state that allowed divorces then — it’s about time. These phrases may look like boilerplate — the kind of things our eyes glaze on past when we see it in a document — but in fact they’re critical elements of what a plaintiff had to prove, and what the court had to find, for a valid divorce.


SOURCES

  1. Chapter LII, Divorce, § 2556, in William W. Mansfield, compiler, A Digest Of The Statutes Of Arkansas: Embracing All Laws Of A General And Permanent Character In Force At The Close Of The Session Of The General Assembly Of One Thousand Eight Hundred And Eighty-Three (Little Rock : Mitchell & Bettis Printers, 1884), 580; digital images, Google Books (http://books.google.com : accessed 10 Apr 2012).
  2. The time frames ranged from one year to as much as five years and some states such as Michigan, New York and South Carolina did not grant absolute divorces for desertion at all. See U.S. Census Bureau, Marriage and Divorce 1867-1906, Part I: Summary, Laws, Foreign Statistics (Washington, D.C. : Govt. Printing Office, 1909), 281-327; digital images, Google Books (http://books.google.com : accessed 10 Apr 2012).
  3. Chapter LII, Divorce, § 2562, in Mansfield, A Digest Of The Statutes Of Arkansas, 581.
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