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A Brief History of Divorce and Alimony

Posted by Chris Leone-Zwillinger | Dec 16, 2013 | 0 Comments

Spousal Support in America has Undergone a Few Key Transformations Over the Past Four Centuries

Alimony law in New Jersey is presently in a state of flux, a topic which he have discussed at-length on our firm blog. Historically, however, alimony was devised to compensate the wounded party for the pain caused by the offending defendant and in a sense was punitive. Even well into the mid-20th century, only the “offending” party had to pay alimony. Initially, as with most litigation, you could only get divorced if you could prove that some wrong had been committed against the plaintiff. Such wrongs are referred to as the “cause of action.” The causes of action in early divorce cases were limited to adultery and desertion. The First divorce in the American Colonies took place on Jan 5, 1643… In the first legal divorce in the American colonies, Anne Clarke of the Massachusetts Bay Colony was granted a divorce from her absent and adulterous husband, Denis Clarke, by the Quarter Court of Boston, Massachusetts Denis Clarke admitted to abandoning his wife for another woman. He also stated his refusal to return to his original wife, thus giving the Puritan court no option but to punish Clarke and grant a divorce to his wife, Anne. The Quarter Court's final decision read: “Anne Clarke, being {sic}  deserted by Denis Clarke hir {sic} husband, and hee {sic} refusing to accompany with hir {sic}, she is graunted{sic}  to bee{sic}  divorced.” Another major difference? In the early history of the colonies, women and children had been treated as chattel and the men owned all of the marital property and yet if the wife committed adultery she was not entitled to alimony. It wasn't until 1860 that there was a movement to liberalize divorce laws so that a woman could leave an unhappy, abusive or violent marriage. The cause was championed by activist Elizabeth Cady Stanton but, unfortunately, because the issue was linked to the women's suffrage movement it was many years until reform actually took place. It was around this time that extreme cruelty was added as a cause of action. By the early 20th century, the laws had been somewhat liberalized and new causes of action were permitted although they still required the plaintiff to prove wrongdoing on the part of the defendant for the divorce to be granted. In most divorces, the husband was the wrongdoer and the wife was entitled to be supported by the husband in the manner to which she had become accustomed. It wasn't until the 1970's that the concept of the “no fault divorce” was adopted in New Jersey. This changed the whole face of alimony in the state because there was no longer a “wrongdoer.” The nature of alimony began to change and the courts were inclined to look at the history of the marriage, who was the primary breadwinner, what was the standard of living of the marriage, the employability of the stay at home spouse, etc., in an effort to come up with a fair resolution that will support the “poorer” spouse while leaving the paying spouse with enough to live on in relatively the same standard. Things began to change again around the turn of the millennium. With modern women living increasingly financial independent existences, alimony had fallen out of favor in divorces where the parties were married for less than 10 years. It was no longer unusual for women to go back to school for education retraining or to learn an altogether new skill. The concept of “rehabilitative” alimony was the more common practice; in theory providing the “poorer” spouse with short term support while they acquired skills to become self-supporting.  In longer marriage,s the court looked at the circumstances and earnings of both parties since more women were in the work force and a few of the glass ceilings had been shattered. At present, two separate bills are pending in the legislature as part of a highly-controversial effort to standardize the way alimony is awarded. In our next post, we will discuss the present day causes of action for divorce and the pending legislation… At  DeMichele and DeMichele  we continue to monitor this issue in the legislature and in the court of public opinion; we'll also continue to provide you with the legal and historical context under-girding these momentous debates. In the interim, if you or a loved one have questions regarding alimony, the enforcement of alimony orders, or the modification of alimony orders  contact us  or call us at (856)546-1350 to schedule a consultation with our experienced New Jersey alimony attorneys.

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