Publisher of Quality Genealogy Materials
Volume 4, Number 14 Mountain Press, P.O. Box 400, Signal Mountain, Tennessee 37377, 1-423-886-6369 September 6, 2012
Author's Notes This is our 50th newsletter, so if you have missed any previous issues you can find them at Archived Newsletter. In this article we discuss researching divorce in your family history. Depending on when the divorce occured will determine where you need to look for the documentation. We also enjoyed meeting several of you in Birmingham last week for the FGS 2012 Conference. If you have any comments or suggestions, please email me at email@example.com.
James L. Douthat
None of us want to think about our ancestors being involved in such things as a divorce. It happened early on and it is still happening today. However, the method of handling a divorce and the judgment rendered is a subject of discussion.
From the beginning of Tennessee and before that in North Carolina, divorces were handled by the Superior Court of Law and Equity at least until 1809. Before this time in Tennessee, there were few court systems in place to handle any type of action so it fell to the Superior Court as it was about all the real court system at the time. In reading a number of the cases as this time, it is apparent that there is nothing new under the sun. The reasons given for a divorce then are much the same as today - infidelity - desertion - neglect. The method to dissolve a marriage was a little better than the Biblical method where a man stood in the main square of his hometown and declared “I divorce you!” three times and it was done. At least by the eighteenth century, the women were given some rights in the action, if not for her then for the children if any were present.
After 1809 the right to grant a divorce was moved to the Circuit and Chancery Courts. This brought the level down to a more local level when many of the court members should know something about the individuals involved. By this time, the legal system of Tennessee had become more clearly defined and organized. A petition for the divorce was filed with the proper court in the local area and then either of the parties had to submit the grounds for that divorce. Sometimes the woman made the petition, thus giving her rights that earlier times were denied her. The reasons to grant a divorce were much as they are today such as - being incapable of procreation - bigamy - adultery or desertion for a period of two or more years. Most normally, it was the male that offered “incapable of procreation” against the female. With the lack of medical knowledge, the blame was usually on the female.
In the proceedings, the accused party was seldom given a chance to defend themselves. The accused would have to enlist family and friends to come to their defense with petitions and statements giving a different view of the situation than presented. Then as now, the accuser may have the facts straight and sometimes, as now, the facts are slanted to suit the purpose of the accusation. In one case I found, the woman brought witnesses to court to state he hit her over the head repeatedly with the skillet, drug her through the fire on numerous occasions and broke her arm at least once. The man said this never happened, but the various witnesses, both family members and friends, upheld the females’ accusation. The court granted her a divorce. There was no mention of the man having to pay restitution or support for the children. All she received out of the whole affair was her freedom from him.
On a State level, the Tennessee General Assembly was allowed to grant divorces from 1796-1835. These records are found in the Acts of the Legislature. It was here that many of the more prominent cases were held and decided. Both the Senate and the House of Representatives were able to hear various cases and in their Journals you will find a number of cases.
In the following case: “James I. Maxwell of Rutherford County, in 1825 petitioned for a divorce which was granted from his wife Jane Maxwell ‘upon proof’. This case was heard in the Legislature, cf: Acts of Tenn. 1825 pg 274.” I want to explain the words “upon proof”. This would indicate that the divorce is not final until proof is presented to the circuit or chancery court where the petitioner gives the necessary proof stated in the petition.
There are many terms mentioned in the divorce records that bear explaining. Divorce ‘avinculo matrimonii’ means an absolute divorce with the right to remarry. There is Divorce ‘a mensa et thoro’ indicates separation from bed and board. ‘Feme Covert’ indicates a married woman. ‘Feme Sole’ indicates a single woman, or a woman who has been married or a woman who has been judicially separated from her husband.
While we hope not to find too many cases of divorce in our family history, you will find them from time to time. Hopefully, this information will help you in your never ending search to find your ancestors. Happy Hunting!
Tennessee Books containing Divorce
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