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Who Sues for Divorce? From Fault through Fiction to Freedom

IF, in a society, men and women had complete equality, in law and in fact, and if divorce were cheap, easy to get, carried no stigma, and had no adverse legal consequences, we would expect little or no difference in the number of husbands and wives who filed for divorce. In fact, in this imaginary society it would make no difference who actually filed; the law might even allow joint filing. It hardly needs to be said that this imaginary kingdom is not the United States. In America, men and women occupy different social roles. Divorce costs money-considerable money. The laws of the various states make divorce more or less time-consuming and inconvenient. The Catholic Church forbids divorce; divorce carries something of a stigma in many strata and among many groups; and the outcome of a divorce case has definite consequences for property settlement, child custody, and, in some places, the right to remarry. For a number of reasons, some of them rather obvious, it has been the general custom that the wife, not the husband, sues for divorce. But this was not always the case in all states; and we may be entering a period in which the pattern is changing. The answer to the question, who sues for divorce, is an indicator of some sensitivity, reflecting attitudes about the use of courts in family matters. This, therefore, is a study in legal culture, focussing on historical changes in the proportion of divorce proceedings initiated by either sex. Before we proceed, it is important to state the limitations of the study. It does not, and cannot, deal with family life as such. It cannot measure adultery, desertion, unhappy marriages, family instability. These factors, of course, affect the divorce rate, and also the question of who sues for divorce. But the relationship is subtle and murky, and it would be foolish to leap from divorce statistics to conclusions about family life and family stability. This is most obvious for a country like Paraguay, which does not allow divorce at all, or South Carolina, which allowed no divorce in the 19th century. Obviously not every couple in Paraguay is happily married; but there is no divorce. Divorce has been common in the West for less than two centuries. Probably the prevailing view among elites during this period has