History of New York State divorce law – and avoidance

On November 22, 2024, New York repealed a 1907 law making adultery a crime. Actually, committing adultery had been subject to criminal punishment for even longer than New York has been a state. In the 1600s, under both the Dutch and the English, the few adulterers who were prosecuted, both male and female, were subjected to physical punishment, fines or prison, and banishment from the community.

Divorce was extremely rare, only three are recorded in New Netherlands from 1655-64, all for adultery. Since in England divorce was not permitted for any reason, there was no law authorizing it in the colonies.

Apparently, without the knowledge of the King, the New York colonial Governor granted divorces in specific cases; and neighboring colonies were more liberal. When King George III learned about this in 1773, he decreed that the colonies were not to pass laws allowing divorce.

This early history of making divorce difficult became deeply embedded. Adultery and legal separation were the only grounds allowed in the first divorce law in New York State, in 1787. This law included a prohibition on remarriage by the adulterer during the former spouse’s lifetime.

Adultery had to be proved in court with corroborating evidence, even if the spouse admitted it. Until 1847, this was the Court of Chancery; since then, it is state Supreme Court. When contested, there would be a jury. If both spouses were found to have committed adultery, the divorce was denied!

It was not until 1967 that additional “fault” grounds were permitted, particularly physical or mental abuse, called “cruel and inhuman treatment.” This law also allowed either party to remarry.

Many states revised their laws in the 1970s to permit “no-fault” divorce, but not New York. The closest we came was permitting divorce after one year of living apart under a written Separation Agreement. After that year, either party could sue for divorce without having a “fault” ground.

Finally, in 2010, New York changed the law to allow the “no-fault” ground of “irretrievable breakdown.” It was no longer necessary to prove your spouse committed wrongdoing to get a divorce.

When it was so difficult to obtain a divorce in New York, those who could afford it went to another state. In the mid-1800s, Illinois, Indiana, Ohio and Pennsylvania were attractive to Easterners seeking divorce, as they allowed more than adultery as grounds, and purposely authorized a short residency period before suing in their courts.

By the late 1880’s South Dakota had the most lax divorce laws, with only a 90-day residency requirement and grounds that included “willful neglect,” “habitual intemperance,” and “cruelty”. Sioux Falls had five railroad lines and luxury hotels to accommodate the “divorce colonies” of women seeking to end their marriages.

Local businesses benefited, such as fancy restaurants, wine dealers, florists, dress shops, jewelers, and, of course, lawyers. However, reporters also hung out in Sioux Falls and “portrayed divorce colonists as wild, immoral big spenders.”  Local residents rarely socialized with the temporary visitors, even though their households likely benefited from the money brought in.

Besides the relative ease of getting a divorce in South Dakota, the distance was also appealing. It was less likely they would become the subject of tabloid newspapers and be socially ostracized — at least until they were exposed by newspapermen who recognized them.

From 1887-1906, only 35.6% of divorces granted in South Dakota were to permanent residents. Some were strongly opposed to the state being a divorce haven. They wanted to attract people to stay, not to simply visit, especially for what some believed to be immoral reasons.

This “migratory divorce trade” resulted in pressure nationally for uniform divorce laws and tighter requirements. In 1893, South Dakota doubled their residency period to six months.

The new law also required personal service of the divorce complaint on the spouse. Until then, service could be accomplished by publication in a South Dakota newspaper. This meant that the spouse in New York was unlikely to learn of the divorce action, increasing the chances it would be uncontested.

By 1903, South Dakota still had the most lenient laws and was known as the “Divorce Capital of the World.”  The opposition kept pushing. In 1909, South Dakota law changed again, this time increasing the residency period to one year, ending their “divorce colonies.”

Idaho, Nebraska, Nevada and Texas were now the only states with six months. In New York, adultery was still the only grounds; South Carolina did not permit divorce at all. Consequently, there were still many Easterners seeking divorce. Reno became “the nation’s new divorce headquarters” in 1909, with its six-month residency and a “generous number of grounds.”

Nevada kept its “divorce trade” by reducing its residency requirement to three months in 1927, then to six weeks in 1931. Another benefit of divorcing in Reno was you could remarry right away. Throughout the 20th century, many states still prohibited remarriage for at least one month, some for as long as a year.

New York’s ban on the adulterer remarrying was more a hurdle than a roadblock. Connecticut and Pennsylvania did a brisk business in new marriages of divorced New Yorkers. In 1883, NY’s highest court ruled that the law in the state where the marriage took place controlled. So a valid marriage in an adjoining state must be recognized as legal in New York, despite it violating the divorce judgement. If the new marriage was in New York, it was void, but not if it was done elsewhere.

New York’s “no-fault divorce” was not law until 2010, but many believed it would pass sooner. A 2006 NPR interview discussed that some feminist organizations opposed it.  Some feared “no-fault” would be unfair to women with little financial means. They felt women would lose their only “bargaining chip” in cases where their husbands did not have grounds to sue, but the wives did. Similarly, there were differing opinions within the Suffrage Movement in the early 1900s, where some saw broader access to divorce as enabling husbands to more easily avoid their financial responsibilities.

—Written by Penelope D. Clute as part of the Clinton County Historical Association's monthly Heritage Corner column

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