CHAPTER II.

DIVORCE.

SECTION 18. DEFINITION.

Divorce is a dissolution of the marriage status. Divorce must be distinguished from an annullment of marriage. Where a marriage is annulled, it is rendered void from the beginning. In the case of a divorce the marriage is generally held valid up to the time of its dissolution and the children born during such marriage will be legitimate.

SECTION 19. Two FORMS OF DIVORCE.

At common law there were two kinds of divorcea vinculo matrimonii, or absolute divorce and a mensa et thoro, which nearly corresponds to our separate maintenance. In this country there is but one kind of divorce-an absolute release from the marriage relation.

There is, in addition to Divorce at the present time, what is known as Separate Maintenance, by which the wife is allowed to live apart from her husband without any dissolution of the marriage relation.

SECTION 20. THE LAW OF WHAT PLACE DETERMINES THE LEGALITY OF DIVORCE.

In general, the validity of a divorce granted by one state will generally be recognized by the courts of every other state. Some exceptions to this rule are to be found in cases where the defendant was a nonresident and more particularly where the complainant in the divorce suit went to the state where the divorce was obtained for the purpose of obtaining such divorce.

A little over a year ago the law was thrown into a great deal of confusion by the decision in the Supreme Court of the United States in the case of Haddock vs. Haddock.' The exact effect of this decision is not yet determined but it has certainly rendered a great number of divorces invalid in any state except the state granting the divorce. This whole subject of the extra territorial effect of a divorce more properly comes under the subject of Conflict of Laws, and will be discussed under that head.2

SECTION 21. GROUNDS FOR DIVORCE.

The most common grounds for divorce are adultery, desertion for a certain specified period, extreme and repeated cruelty, habitual drunkenness, attempting the life of the other, bigamy, and impotency. The

1 201 U. S., 562. Vol. 12, Subj. 39.

STATES.

Alabama.

Arizona..

Arkansas.....
California.

Colorado.

Connecticut...

Delaware....

D. of Columbia.

Florida.

Georgia......

Residence Required. 1 year.

1 year.

1 year. 1 year. 1 year.

t

2 years.

2 years.

1 year.

3 Causes for Divorce in the various
states are as follows:

Causes for Absolute Divorce.
In addition to adultery, which is cause for divorce in all the
States*

Abandonment two years, felony, crime against nature,
habitual drunkenness, violence, pregnancy of wife by
other than husband at marriage, physical incapacity,
imprisonment for two years.
Felony, physical incapacity, desertion one year, excess,
cruelty, neglect to provide one year, pregnancy of wife
by other than husband at marriage, conviction of felony
prior to marriage unknown to other party.

Desertion one year, felony, habitual drunkenness one year,
cruelty, permanent insanity, former marriage existing.
Cruelty, desertion one year, neglect one year, habitual
drunkenness one year, felony.

Desertion one year, physical incapacity, cruelty, failure to
provide one year, habitual drunkenness one year, felony,
former marriage existing.

Fraudulent contract, wilful desertion three years, with
total neglect of duty, habitual drunkenness, cruelty, im-
prisonment for life, infamous crime involving violation
of conjugal duty and punishable by imprisonment in
State prison, seven years' absence without being heard
from.
Desertion three years, habitual drunkenness, physical in-
capacity, cruelty, felony, and at the discretion of the
Court, fraud, want of age, neglect to provide three years.
Marriages may be annulled for former existing marriage,
lunacy, fraud, coercion, physical incapacity, and want of
age at time of marriage.

Cruelty, violent temper, habitual drunkenness, physical
incapacity, continued desertion, former marriage exist-
ing, relationship within prohibited degrees.
Mental and physical incapacity, desertion three years,
felony, cruelty, habitual drunkenness, force, duress, or
fraud in obtaining marriage, pregnancy of wife by other
than husband at marriage, relationship within pro-
hibited degrees.

*Exclusive of South Carolina, which has no divorce law. †Varies with cause.

last two causes are more properly the grounds for the annullment of a marriage. Insanity and non-support are not grounds for divorce. Non-support, however, may be the basis for a suit for separate maintenance, or for a criminal prosecution against the husband.

SECTION 22. ALIMONY AND CUSTODY OF CHILDREN.

The courts upon granting a decree for divorce may make provisions for the payment of certain sums of money for the support of the wife and minor children.

Residence

Causes for Absolute Divorce.

Required. In addition to adultery which is couse for divorce in all the

STATES.

Idaho.... Illinois.

6 mos. 1 year.

Indiana.
Iowa.
Kansas.

2 years.

1 year.

1 year.

Kentucky...... 1 year.

States.*

Cruelty, desertion one year, neglect one year, habitual
drunkenness one year, felony, insanity.
Desertion two years, habitual drunkenness two years,
former existing marriage, cruelty, felony, physical in-
capacity, attempt on life of other party, divorced party
cannot marry for two years.

Abandonment two years, cruelty, habitual drunkenness,
failure to provide two years, felony, physical incapacity.
Desertion two years, felony, habitual drunkenness, cruelty,
pregnance of wife by other than husband at marriage.
Abandonment one year, cruelty, fraud, habitual drunken-
ness, gross neglect of duty, felony, physical incapacity
pregnance of wife by other than husband at marriage.
Separation five years, desertion one year, felony, physical
incapacity, loathsome disease, habitual drunkenness one
year, cruelty, force, fraud, or duress in obtaining marriage
Joining religious sect believing marriage unlawful,
pregnancy of wife by other than husband at marriage or
subsequent unchaste behavior, ungovernable temper.
Felony, habitual drunkenness, excesses, cruelty, public
defamation of other party, abandonment five years,
attempt on life of other party, fugitive from justice.
Cruelty, desertion three years, physical incapacity, habits
of intoxication by liquors, opium, or other drugs, neglect
to provide.
Abandonment three years, unchastity of wife before marri-
age, physical incapacity, any cause which renders the
marriage null and void ab initio.
3-5-years Cruelty, desertion three years, habits of intoxication by
liquors, opium or other drugs, neglect to provide, physi-
cal incapacity, imprisonment for felony, uniting for three
years with religious sect believing marriage unlawful.
Felony, desertion two years, habitual drunkenness, physi-
cal incapacity, and in the discretion of the Court for
cruelty or neglect to provide.

1 year.

2 years.

2 years

1 year.

1 year.

1 year.

6 mos.

Nevada....... 6 mos.

Desertion one year, habitual drunkenness by liquors or opium, cruelty, physical incapacity, imprisonment for felony.

Felony, absence one year, habitual drunkenness one year, cruelty, indignities, vagrancy, former existing marriage, physical incapacity, conviction of felony prior to marriage unknown to other party, wife pregnant by other than husband at marriage.

Cruelty, desertion, neglect one year, habitual drunkenness one year, felony.

Abandonment two years, habitual drunkenness, physical incapacity, felony, failure to support two years, cruelty. Desertion one year, felony, habitual drunkenness, physical incapacity, cruelty, neglect to provide one year.

*Exclusive of South Carolina, which has no divorce law.

This is called alimony. The collection of alimony may be enforced by punishing the husband for contempt of court, if he fails to pay it. The court in granting a divorce may also make provisions as to the custody of the children.*

SECTION 23. PROHIBITION OF RE-MARRIAGE.

In New York, the re-marriage of the guilty party is prohibited during the lifetime of the other party to the marriage. In several states statutes have recently • See Chapter 7, on Custody of Children.

S. Carolina.
South Dakota.. 6 mos.
Tennessee...... 2 years.

Causes for Absolute Divorce.
In addition to adultery, which is cause for divorce in all the
States.*

Cruelty, felony, physical incapacity, absence three years,
habitual drunkenness three years, failure to provide
three years, treatment endangering health or reason,
union with sect regarding marriage unlawful, wife sepa-
rate without the State ten years, not claiming marital
rights, husband absent from United States three years
intending to become citizen of another country.
Desertion two years, physical incapacity. No divorce
may be obtained on grounds arising in another State
unless they constituted ground for divorce in the State
where they arose.

Abandonment, cruelty, neglect to provide, habitual drunkenness, felony, physical incapacity, pregnancy of wife by other than husband at marriage.

Adultery only.

Pregnancy of wife by other than husband at marriage, physical incapacity.

Cruelty, desertion one year, neglect one year, habitual
drunkenness one year, felony.

Absence three years, cruelty, fraud, gross neglect of duty,
habitual drunkenness three years, felony, former existing
marriage; procurement of divorce without the State by
one party, which continues marriage binding upon other
party; physical incapacity.
Abandonment one year, cruelty, fraud, habitual drunken-
ness, felony, gross neglect of duty, physical incapacity,
former existing marriage, pregnancy of wife by other
than husband at marriage.

Felony, habitual drunkenness one year, physical incapacity,
desertion one year, cruelty or personal indignities render-
ing life burdensome.

Former existing marriage, desertion two years, personal abuse or conduct rendering life burdensome, felony, fraud, relationship within prohibited degrees, physical incapacity and lunacy.

Cruelty, desertion five years, habitual drunkenness, excessive use of morphine, opium, or chloral, neglect to provide one year, gross misbehavior, living separate ten years, physical incapacity. Either party civilly dead for crime or prolonged absence.

No divorces granted.

Cruelty, desertion one year, physical incapacity, neglect one year, habitual drunkenness one year, felony. Former existing marriage, desertion two years, felony, physical incapacity, attempt on life of other party, re

*Exclusive of South Carolina, which has no divorce law. Varies with cause. Actual residence.

been passed prohibiting the re-marriage of either party for a specified time.

"According to some decisions a second marriage after divorce within the time proscribed by a statute like that with which the reported case is concerned would be voidable only. These decisions make a distinction between statutes forbidding a second marriage during a specified time after the decree of divorce or during the time for appeal or error, and imposing a penalty, and those statutes which declare that the parties shall not be capable of contracting the second marriage, but which do not impose a penalty. In the first instance the second marriage would be merely void. This distinction is recognized in State vs. Walker, 36 Kan., 297. The Kansas statute is very similar to the Nebraska statute under which the reported case is

STATES.

Residence

Causes for Absolute Divorce.
Required. In addition to adultery, which is cause for divorce in all the
States.*

Texas.

6 mos.

Utah.

1 year.

Vermont.
Virginia....

1 year. 1 year.

Washington.... 1 year.

West Virginia.. 1 year.

Wisconsin.

Wyoming....

1 year.

1 year.

fusal of wife to live with husband in the State and ab-
senting herself two years, pregnancy of wife by other
than husband at marriage; at the discretion of the Court
for cruelty, indignities, abandonment, or neglect to pro-
vide.
Abandonment three years, physical incapacity, cruelty,
excess, or outrages rendering life together insupportable,
felony.
Desertion one year, neglect to provide, physical incapacity,
habitual drunkenness, felony, cruelty, permanent in-
sanity.

Imprisonment three years, intolerable severity, desertion
three years, neglect to provide.
Insanity at marriage, felony, desertion three years, fugitive
from justice two years, pregnancy of wife by other than
husband at marriage, wife a prostitute, or either party
convicted of felony before marriage unknown to other,
physical incapacity.

Abandonment one year, fraud, habitual drunkenness
refusal to provide, felony, physical incapacity, incurable
insanity, cruelty or indignities rendering life burden-
some, other cause deemed sufficient by the Court.
Desertion three years, felony, physical incapacity, preg-
nancy of wife, by other than husband at marriage,
husband a licentious character or wife a prostitute un-
known to other party, either party convicted of felony
before marriage unknown to other.
Felony, desertion one year, cruelty, physical incapacity,
habitual drunkenness one year, separation five years.
Divorcee cannot marry for one year.
Felony, desertion one year, habitual drunkenness, cruelty,
neglect to provide one year, husband a vagrant, physical
incapacity, indignities rendering condition intolerable,
pregnancy of wife by other than husband at marriage,
either party convicted of felony before marriage un-
known to other.

*Exclusive of Sơ‘h Carolina, which has no divorce law.

Vol. IV.-16.