Divorce court

“ Unless otherwise provided by local law, a decree of divorce by a court having jurisdiction of the cause and of the parties, dissolving the bond of matrimony, puts an end to all obligations of either party to the other, and to any right which either has acquired by the marriage in the other's property, except so far as the court granting the divorce, in the exercise of an authority vested in it by the legislature, orders property to be transferred, or alimony to be paid by one party to the other. ”

“ The victim husband has the privilege of maintaining the children as well as herself out of his property or earnings, and has the added consolation of knowing that they will be brought up to detest him.
Even in the extreme case where a deserting wife takes with her the children of the marriage, there is practically no redress for the husband if in narrow circumstances. The police courts will not interfere. The divorce court, as already stated, is expensive to the point of prohibition. ”

“ It has been a long-established rule that the courts of the United States have no jurisdiction upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery, or an incident of a divorce or separation, both by reason of the fact that the husband and wife cannot usually be citizens of different states so long as the marriage relation continues (a rule which has been somewhat relaxed in recent cases) , and for the further reason that a suit for divorce in itself involves no pecuniary value. ”

“ Nevertheless, the courts are encouraged to adopt a cautious and conservative policy. They are allowed to defer "their decree of divorce, when the same is applied for, to any specified time, not exceeding one year, when it appears" that a compromise may be made; and "during the time of such deference ... , the bonds and engagements of matrimony may not be violated by the parties." Furthermore, the court is empowered to punish by fine or imprisonment or both any person "who shall stir up unwarrantable litigation between husband and wife, or seek to bring about a separation between them." ”

“ First, on petition of either consort the court is empowered to grant a complete dissolution of wedlock; but in this respect the provisions of the act are conceived in the same narrow spirit that actuated the policy of legislative divorce. The woman is treated with precisely the same injustice. For while the husband may secure an absolute divorce on account of the simple adultery of the wife, the wife is unable to free herself from an unfaithful husband unless his infidelity has been coupled with such cruelty as "would have entitled her to a divorce a mensa et thoro;" ”

“ One could understand and apply, without decades of confusion, a ruling that transient divorces, founded on fly-by-night 'residence,' are invalid where rendered as well as elsewhere; in other words, that a decent respect for sister states and their interests requires that each, to validly decree divorce, do so only after the person seeking it has established connections which give evidence substantially and objectively that he has become more than casually affiliated with the community. ”

“ The facts are to be tried by a "special or foreign" jury at some circuit court or sittings, to be held by a justice of the supreme court; and the person convicted is prohibited from further marriage only during the lifetime of the other spouse. But the most important innovation made by this act is the provision for partial divorce in favor of the wife. ”

“ No divorce is henceforth to "be decreed for any cause, if the parties have never lived together as husband and wife" in the state, nor unless the libellant shall have resided there "one full year next preceding the filing of the libel in court." Furthermore, no divorce may be granted for any cause "which shall have accrued in any other state or country, unless one of the parties was then living in the state, and unless before such cause accrued the parties had lived together in this state as husband and wife. ”

“ That a husband can drive his wife from his home by conduct which entitles her to a divorce, and thus force her to find another domicil, and then commence proceedings in a court of his own domicil for a divorce, which court obtains jurisdiction over her only by a service of process in the state of her new domicil, through the mail, and that on such service he can obtain a judgment of divorce which shall be conclusive against her in her action in the court of her own domicil, seems to me to be at war with sound principle and the adjudged cases. ”

“ A husband can obtain a divorce upon proof of his wife's infidelity; but the wife can get it only by proving, in addition to the husband's adultery, either that it was aggravated by bigamy or incest or that it was accompanied by cruelty or by two years' desertion. Misconduct by the husband bars him from obtaining a divorce. The court is empowered to regulate at its discretion the property rights of divorced people and the custody of the children. ”

“ A full divorce is permitted only on the scriptural ground; but a partial divorce "for life or for a limited time" may be decreed in favor of the aggrieved for (1) cruel treatment; (2) conduct rendering cohabitation unsafe or improper; (3) abandonment, accompanied by refusal to fulfil the matrimonial obligations sanctioned by the statute. If in any case a decree of separation [141] be denied, the court may provide for the separate maintenance of the wife and children by the husband or out of his property. ”

“ The divorce was held to be valid, the court observing that 'the protection of innocent parties and the purity of public morals require that divorces lawfully pronounced in one jurisdiction, and the new relations thereupon formed, should be recognized as operative and binding everywhere,' in the absence of fraud or collusion. The ruling was that the wife was entitled to dower in lands of which the husband was seised during coverture, the statute expressly giving the right where divorce was decreed for the cause of adultery, as if the husband were dead. ”

“ Absolute divorce is authorized on the same two grounds as in 1852, the unjust discrimination regarding the husband's infidelity being still maintained. On the other hand, "a divorce from the bond of matrimony, or from bed and board, at the discretion of the court," may now be decreed for (1) adultery of the husband; (2) extreme cruelty; (3) procurement of the marriage by force or fraud; (4) want of legal age—sixteen for males and fourteen for females—if after that age the marriage has not been voluntarily ratified; (5) wilful abandonment for three years ”

“ Prohibition of Paid Attorneys in Divorce.—The absolute abolition of any paid service of any attorney in the interest of getting anyone a divorce, is a primary social demand. The establishment of a "Divorce Proctor" service in a Domestic Relations Court, with sole jurisdiction over applications for divorce, is a second vital social demand. Some form of legal provision which would make judges of a special and honored class the paid representatives of society's demand for marriage to be as permanent as individual justice will allow is essential to any genuine divorce reform. ”

“ I cannot join in exerting the judicial power of the Federal Government to compel the State of North Carolina to subordinate its own law to the Nevada divorce decrees. The Court's decision to do so reaches far beyond the immediate case. It subjects matrimonial laws of each state to important limitations and exceptions that it must recognize within its own borders and as to its own permanent population. It nullifies the power of each state to protect its own citizens against dissolution of their marriages by the courts of other states which have an easier system of divorce. ”

“ If the decree is not complied with, such non-compliance is equivalent to desertion, and a suit for judicial separation may be instituted immediately. If the husband is the offending party, and if he has been guilty of adultery, a suit for divorce may at once be instituted; or if he commits adultery subsequently to the date of the decree for restitution, proceedings for divorce may be taken. Furthermore, if the suit for restitution is brought by the wife, the husband may be directed to make such periodical payments for her benefit as the court may think just. ”

“ The law for divorce was enforced by the Department of Health, as doctors were, from their knowledge of human frailty, the best judges to decide whether a man and woman should live together in the married state or be separated, and while the law provided for a compulsory decree of divorce for adultery, which was a felony, it also allowed divorce for incompatibility of temperament. A court of six Government physicians, three males and three females, heard all divorce cases in every district. ”

“ There are certainly various ways if people choose to connive at divorce. There are certain States where the residence essential to give the court jurisdiction can be obtained in a pitifully short time—even as short as three months, and where an agreement to live apart is allowed, through lack of scrutiny, to pass for genuine desertion. If Mrs. Waldo and her husband have both been guilty of infidelity, neither is entitled to a decree of divorce in any court of justice. ”

“ The Supreme Court of the State had decided that the order of a Superior Court allowing alimony during the pendency of any action for divorce is not appealable, but it had not decided that, under the pretence of granting alimony, an inferior judge could apportion a rich man's estate among champerty lawyers, and their adventurous client, by an order from which there could be no appeal, made prior to any decree that there had ever been a marriage between the parties, when the fact of the marriage was the main issue in the case. ”

“ The law of 1872, however, is somewhat conservative. "In all cases where a divorce a vinculo matrimonii is decreed for adultery or abandonment, the court may, in its discretion," forbid the guilty party to "contract marriage with any other person during the lifetime" of the injured spouse, the bond of marriage not being dissolved, but remaining in full force with respect to such offender. ”

“ The worthy lawmaker starts out valiantly. The act of 1802, giving the superior court primary and the legislature final jurisdiction in petitions for total divorce, as required by the constitution, is justified in language which seems grotesque in the light of later experience. Such a measure is needful, we are assured, not only because there are doubts as to the powers of the judges in divorce causes without a statute, but because "marriage being among the most solemn and important contracts in society, has been regulated in all civilized nations by positive systems;" ”

“ All the world is not party to a divorce proceeding. What is true is that all the world need not be present before a court granting the decree and yet it must be respected by the other forty-seven States provided-and it is a big proviso-the conditions for the exercise of power by the divorce-decreeing court are validly established whenever that judgment is elsewhere called into question. In short, the decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact. ”

“ But to endow each State with controlling authority to nullify the power of a sister State to grant a divorce based upon a finding that one spouse had acquired a new domicil within the divorcing State would, in the proper functioning of our federal system, be equally indefensible. No State court can assume comprehensive attention to the various and potentially conflicting interests that several States may have in the institutional aspects of marriage. ”

“ True philosophy would extract good from every condition.... By art. IV, sec. 15, of our constitution, the courts of common pleas have exclusive jurisdiction in all cases of divorce, and by art. XIV, sec. 5, divorces from the bonds of matrimony shall not be allowed but by the judgment of a court as shall be prescribed by law. Thus the general assembly is denied the power to grant divorces directly, but is permitted to clothe the courts of common pleas with that power. ”

“ If our decision depended upon the facts just stated, we should have no hesitation in granting the relief the appellant seeks. But the court would be unmindful of its duty to administer justice according to the settled rules of law if it permitted the feelings naturally excited by the conduct of the husband in relation to that divorce to control its investigation of the primary question, whether there was between him and his wife, prior to and at the time of their marriage, and as the consideration of the marriage, such an agreement as that set out in the bill ”

“ So also, a deserter from the matrimonial domicile may be bound by a divorce granted by a court of the state where the matrimonial domicile is situated. Whether fault on the part of the deserter is an essential seems on the basis of our cases on jurisdiction for divorce to be an open question ”

“ It subjects every marriage to a new infirmity in that one dissatisfied spouse may choose a state of easy divorce, in which neither party has ever lived, and there commence proceedings without personal service of process. The spouse remaining within the state of domicile need never know of the proceedings. ”

“ The law of 1848, when the marriage bond is dissolved on account of infidelity, authorizes the court in its discretion to allow both parties to remarry or only the injured person, as may seem just. [271] Such substantially is the present law. "In granting [80] a divorce for adultery, the court may decree that the guilty party shall not marry again; in which case the bond of matrimony shall be deemed not to be dissolved as to any future marriage of such party, or in any prosecution on account thereof. ”