By: Carolyn L. Barkley
Many genealogical researchers probably have not considered using divorce records as part of their research. First, there is the belief (basically the same one that applies to the possibility of having criminal ancestors) that “it couldn’t happen in my family;” second, there may be no anecdotal stories in the family about a divorce, given the social stigma attached to it in earlier generations; and third, the records can be difficult to locate.
In the course of your research, however, you may find facts and stories that don’t quite add up to the picture you might expect. These circumstances might include the lack of pictures of a spouse in an otherwise well-photographed family, or a woman in the census listing her marital status as “widow” when you can find no documentation of the death of a spouse. In such instances, you might want to look to divorce records as a way of resolving an apparent anomaly.
Divorce has a long history. While it can be documented as early as the Biblical book of Deuteronomy (24:1), your research will, of necessity, be focused more on divorces during the past four centuries. There were some divorces in colonial America. The Puritans considered marriage a civil action, rather than a religious rite, and there were as many as nine divorces granted in the Plymouth and Massachusetts Bay Colonies prior to 1691. As divorce has always been handled at the local (state or county) level, the laws defining it vary from jurisdiction to jurisdiction and from time period to time period.
Early divorces were often legislative actions in which an individual petitioned his or her (but usually his) state assembly for legal redress. For these divorces, records can be found among the legislative papers, and are frequently termed “private acts.” When the work of these legislative bodies reached a level that they could no longer render timely responses to such petitions, divorce cases began to be heard at the county level, where a variety of courts might consider them. Depending on the geographic location, these courts include chancery, equity, probate, superior, or family and domestic courts. These divorce records can be found among the orders, records, and indices of the specific court having jurisdiction.
A divorce record may provide a variety of previously unknown information including a copy of the marriage license (providing the maiden name of the spouse, date and place of marriage, date and place of birth of both parties, and perhaps, the parents’ names of both parties); date and place of birth of any children; grounds for and terms of the divorce; relocation of either of the parties to the action; and the names and depositions of other family members.
If you suspect that there may have been a divorce in the family, here are a few steps (with many caveats) to locate the pertinent divorce records:
- Document, as much as possible, all known dates and information about the parties involved. In particular, you will need to determine where the divorce might have occurred. Caveat: From time to time, plaintiffs traveled to other locations where divorce laws were more lenient (Reno, Nevada, or Sioux Falls, South Dakota, for example). If you do not find a divorce record in an expected location, check near-by states or popular divorce destinations.
- Read the divorce laws for that state during that specific time period. What were the acceptable grounds for divorce? Early divorces often recognized only desertion or adultery as acceptable causes. Were there years in which divorce was illegal? If divorce was illegal at that time in their state, what would the petitioner have done? Caveat: The Internet may not be the best place to research historic divorce laws. In researching this article, I found “State Divorce Laws.” This site, while providing links to the divorce laws for each state, indicates in the “fine print” that information has been compiled from “the most recently available statute books and updates for each state.” Carefully analyze the information provided on such websites to determine its usefulness.
One good source of information for the legal history of divorce may be the websites of individual state archives. For example, the South Carolina State Archives includes information stating that “Although divorce before 1868 was not legal, a legislative act or the district courts of equity could grant divorce or separate maintenance, but did so rarely. From 1868 to 1878, when a legislative statue again outlawed it, divorce could be obtained in the courts of common pleas. Divorce was legalized in 1950, and the office of the clerk of the court in the county where the divorce was granted holds those records.” I have been researching a couple who were married and lived in Charleston, South Carolina, in the 1940s. I know that they were separated (and I assume divorced) by at least late 1948, as the wife, then living in Virginia, bore a son to her second husband in July 1949. I am now quite curious as to when and where the divorce actually occurred, if South Carolina divorces were not legalized until 1950. My answer may lie in Virginia records, rather than those in South Carolina.
- If the laws for your specific area of interest required the petitioner to publish legal notices, read the local newspapers for the time period in question. Is there a notice about a runaway wife? Has the husband or wife advertised that he or she is no longer responsible for the spouse’s debts or actions? All such notices will add to your knowledge of the circumstances surrounding the suit for divorce.
- Depending upon the time period, determine the legislative body or court that would have handled the suit. Consult the court’s website or the pertinent state archives for information about the years for which records are available and the accessibility, hours, and location of the court facility. You do not want to arrive at the courthouse only to find that the records have been sent to the state archives.
- Identify the specific record or case file. Caveat: Even though you have documented very specific information concerning the parties to the case, you may still have difficulty accessing a specific file. Several years ago, I was doing some research in Scranton, Pennsylvania. In the marriage license index, located in the probate court clerk’s office, I was able to document that the bride had been previously divorced and had, apparently, resumed her maiden name. The record gave the file number and date of the final decree, but not the name of the husband. I was sent across the street to the court building to request the divorce file. The court did not provide public access to their archives; instead, the suit was searchable on a computer index by surname of the parties involved, but not by date or file number. When I expressed the fact that I could not believe that they did not have their records arranged by date at least, I instantly made myself persona non grata with the staff member assisting me. While I could have taken up the access issue with the clerk, time did not permit me to pursue the issue.
- You may be able to consult an online index to divorce cases. Caveat: Internet searches can be either free or fee-based. Many sites claim to provide “free” searches for divorce records, but, after you’ve entered your search terms and received confirmation that a record exists, require a payment or subscription to access further information. Analyze each site carefully, particularly for available years. If you are willing to pay for your search, two sites offering such searches are “State Divorce Records” and “Public Records.” [These sites are provided for information purposes only, and do not represent an endorsement by the author.]
- You can also access various databases on Ancestry.com by doing a “card catalog” search for titles using the term “divorce.” Caveat: Almost all of the Ancestry.com entries are indices only and cover very recent years (“California Divorce Index, 1966-1984,” and “Vermont Divorce Index, 1981-1984 and 1989-2001,” for example).
- Access and read the entire divorce case file, either online, if available, or in the original in the appropriate courthouse or archives.
- One wonderful Ancestry.com database is the “Tennessee Divorce and Other Records, 1800-1965,” which includes digitized images of divorce cases. In searching this database for a Barkley divorce, I encountered one of my favorite names of all time in the case of Halloween Barkley v. Earnest Barkley et. al. Halloween filed suit against her husband, Earnest, and the executor of Earnest’s father’s (J. S. Barkley) Will, W. R. Boyte, in August 1923 in Dickson County, Tennessee. In the suit, Halloween stated that she married Earnest in Benton County, Tennessee, on 2 February 1920. They lived together intermittently between his periods of work in Nashville and his alleged work in Ohio, until he “abandoned her, or turned her out of doors, and refused or neglected to provide for her,” after he left her for a final time on 14 April 1923. She included the executor of J. S. Barkley’s will in the suit because the will stated that Boyte was to sell any property owned by J. S. Barkley and, following the payment of all outstanding debts, divide the proceeds between Earnest and Halloween. The case file includes a restraining order that Halloween had sworn out against her husband following her filing for divorce. In the course of reading the suit, in addition to the name of Earnest’s father, the date and location of the marriage between Halloween and Earnest, and the sad account of their marriage, we learn that Earnest was also referred to as R. E. Barkley; that Halloween’s maiden name was Miller; and the exact location of the house owned by J. S. Barkley in Dickson, Tennessee.
- Another interesting divorce record-related story was discovered through a search in the chancery court order books of Nelson County, Virginia. Goulay Martin married Hattie Bell Fitzgerald on 11 October 1913 in Lovingston. On 23 November 1920, Hattie was granted a divorce as she wanted to remarry (Nelson County Court Order Book O, 49-50). In her suit for divorce, she stated that Goulay had deserted her “for no reason” and was, at the time of her suit, living “outside of Virginia.” My further research into Goulay’s whereabouts located him in West Virginia, but even more interestingly, found that he had remarried in Richmond, Virginia, on 27 December 1918, two years before Hattie was granted her divorce.
One important resource for determining the location of divorce records in each state is Thomas Jay Kemp’s International Vital Records Handbook, (5th ed., Genealogical Publishing Co., 2009). For example, Colorado has dissolution of marriage records (divorce, separation and annulment) on the state level for 1851-1939 and from 1958 to present; the intervening years (1940-1967) are available only at the county level. The Utah State Archives has microfilm copies of some divorce decrees from 1852 to 1969. If you are interested in divorces granted in other countries, you will want to refer to Molly Kalafut’s “History of Divorce Around the World.”
Divorce records, although requiring much time and effort, can add a great deal to your understanding of your family’s history.