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Wednesday, February 10, 2016

Why are Vital Records Vital to Genealogists? Part Seven -- Strategies for Locating “End of Marriage” Records

By Jennifer Pahlka from Oakland, CA, sfo - LOL Just divorced. And no, that's not my car., CC BY-SA 2.0,
It is unfortunate but some marriages end in annulment, divorce or dissolution. While searching for an ancestor's marriage records, you may run across information that seems to point to the fact that the ancestor was married more than once and it appears that the spouse or spouses in the first marriages did not die. In these cases, you can suspect a divorce.

Locating records concerning a divorce, separation or annulments is one of the more challenging aspects of genealogical research. As is the case with any formal court proceeding such as bankruptcy, probate, and lawsuits of any kind, the records of the action are mainly found in the civil courts but in some cases and more frequently in the past, these records may also be found in churches.

When beginning your search for divorce records it is important to understand that the terminology may change from location to location. In Arizona, for example, there are no "divorce" laws. All of the references to divorce are referred to as "marital dissolution" laws and procedures. So searching for a "divorce" court in Arizona may be complicated.

In beginning any research it is important to understand that divorce is a relatively recent phenomena. In England, for example, from 1552 when the first divorce in England occurred until 1857, there had been only 324 divorces in the entire country. The reason why such few divorces were granted is found in this explanation from the Wikipedia article, "Divorce in England and Wales."
Prior to the Matrimonial Causes Act 1857, divorce was governed by the ecclesiastical Court of Arches and the canon law of the Church of England. As such, it was not administered by the barristers who practised in the common law courts but by the "advocates" and "proctors" who practised civil law from Doctors' Commons, adding to the obscurity of the proceedings. Divorce was de facto restricted to the very wealthy as it demanded either a complex annulment process or a private bill, either at great cost. The latter entailed sometimes lengthy debates about a couple's intimate marital relationship in public in the House of Commons.
The first divorce granted in the English Colonies in America was in 1643 in the Massachusetts Bay Colony. Before the 20th Century, divorces were rare and in some areas illegal. In areas predominated by a single religion, it is possible that even with civil consent, marriages could still be prohibited by the church. There are still entire countries today that prohibit divorces.

The earliest divorce records in America could be found in the legislative record due to the fact that to obtain a divorce the petitioners had to appeal to that body. Due to, in part, to the difficulty of obtaining a divorce it was not uncommon for either the husband or the wife to abandon the family. From time to time I encounter ancestors who moved out of the family home with no evident arrangements being made. The ancestor then appears in a different place or country with a new "spouse."

As I mentioned above, marriage records can either be maintained by civil authorities or by ecclesiastical (church) authorities or both. Even though divorces have both civil and ecclesiastical aspects, the records will be found primarily in court records. From time to time and for some religious organizations you may find divorce records among the other records of the churches, but divorce has been primarily considered a civil action.

In order to find divorce records, it is important to understand the court system of the area where the divorce may have occurred. Throughout the United States divorce laws were highly restrictive until well into the 20th Century. So called "no-fault" divorces were introduced in Russia shortly after the Russian Revolution beginning in 1918. In the United States, California was the first state to enact "no-fault" divorce laws in 1969. I was in law school in Arizona when the law was enacted in 1973. You can find a list of the states and the dates when no-fault divorces were allowed by legislative action in an article from the National Council on Family Relations entitled, "The Effective Dates of No-Fault Divorce Laws in the 50 States."

Prior to the enactment of no-fault divorce laws, the various states had vastly differing rules and laws concerning divorces. One of most common was a lengthy residence requirement. For this reason, many couples who wished to obtain a divorce traveled to states or countries with more liberal divorce laws such as Nevada or Mexico. Even then, there were individual states that did not recognize divorces obtained in Nevada or Mexico. Recognition of divorce judgements among the states in the United States is matter of the application of the "full faith and credit" clause of Article IV, Section 1 of the United States Constitution, but this provision does not apply to divorces obtained in other countries. Whether or not a divorce in one country is recognized in another country, such as the frequently used Mexican divorces, were governed by the treaties that existed at the time between the country granting the divorce and the country where the people obtaining the divorce were residents. In the United States, it also depended on the state where the couple lived.

Divorce is usually governed by the laws of the place where the couple resides at the time the divorce is filed in the court. Each state in the United States and every other country that recognizes divorce actions has its own very specific rules and laws. Genealogists who find the need to investigate divorce records will need to become familiar with the law in the specific area where they are researching. Whether or not a divorce action is commenced in a "fault" or "no-fault" state, there are specific "grounds" or reasons for the divorce that have to be met. These grounds differ from state to state and from country to country. Here is a summary of the possible grounds for a divorce from Wikipedia: Grounds for divorce (United States):
A no fault divorce can be granted on grounds such as irretrievable breakdown of the marriage, irreconcilable differences, incompatibility, or after a period of separation, depending on the state. Neither party is hold responsible for the failure of the marriage. On the other hand, in fault divorces one party is asking for a divorce because they claim the other party did something wrong that justifies ending the marriage. Several grounds for fault divorce include adultery, cruelty, abandonment, mental illness, and criminal conviction. There are, however, additional grounds that are acceptable in some states such as drug abuse, impotency, and religious reasons.
Genealogical researchers must also consider the fact that a court action for obtaining a divorce can be either contested or non-contested. This means that the parties to the divorce can either agree that a divorce is necessary or not. Even before a divorce is granted, some states require reconciliation efforts including formal counseling or arbitration. All of these procedures create records that can be searched. 

One of the best places to start when searching for divorce records is to search by state in the Research Wiki. For each state there is an article addressing which court may have the records. Research into divorce records is essentially research into court records. The process can be broken down into several steps.

Step One: Determine where the divorce was likely to have been obtained. This requires some additional research into other states or countries where the parties may have gone to obtain the divorce.

Step Two: Research which court had jurisdiction over divorce actions in the particular area where the divorce action may have been filed. The court handling divorce cases may have changed over time.

Step Three: Search any indices that may exist or in the alternative search the court files for the time period in which the matter may have been heard. It is important to realize that the action may have been contested and spread out over a period of months or even years.

Step Four: Be sure and search any land and property records for the filing of post-decree land transfers or sales.

It is also a good idea to search the large online genealogical database companies' records also. Each state has a different way of accessing old court records, in some cases, they are still maintained on paper in the various court houses but statewide digital records are becoming more common.

Now it is important to write about annulments and separations. A marriage annulment is retroactive. This means that it is considered to determine that the marriage never took place. However, this is another area where investigation of the specific laws of the place in force at the time is necessary. In some cases, the annulment may only apply to the marriage from the date of the action. This is an important distinction and may affect the status of property owned, bought or sold during the interim when the annulment was not applicable.

One of the most common grounds (reasons) for an annulment is that one or the other of the parties was already married at the time of the marriage. This means that the marriage was prohibited as a matter of law. Other reasons for annulment overlap with those which can be a basis for a divorce. They include forced consent where one of the parties maintains that the marriage was entered into by fraud, threats or duress. In some cases annulments are granted for underage marriages. Other situations that can be the basis for an annulment include mental incapacity or illness or the physical incapacity to consummate the marriage or impotence.

In many annulment cases, the question is whether or not the marriage is void as a matter of law or merely voidable. If the marriage was void, it was not legally valid in the first instance. Whereas a voidable marriage is one where the reason for the annulment is not evident until after the marriage. It is important to understand that an annulment whether done through the courts or through the church, is a formal procedure that is recorded by the court or church. As is the case with divorce laws, the laws and procedures governing annulments differ from state to state, country to country and from one religious denomination to another.

Separation is a middle ground in a divorce proceeding. A marital separation can be informal or formal. There are usually no records of informal marital separations unless the parties make some written record in personal papers, letters or diaries. On the other hand, a formal separation is a step towards divorce (marital dissolution). In the course of divorce proceeding it is possible that the court can order any degree of separation and/or require one of the parties to refrain from contacting the other party except under certain circumstances.

Here are the previous installments of this series.

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