J.
Herbie DiFonzo.
Beneath the Fault Line: The Popular and Legal Culture of Divorce in
Twentieth-Century America.
Charlottesville: University Press of Virginia, 1997. xiv + 177 pp. Notes,
index. $35.00 (cloth), ISBN 0-8139-1707-7 .
Reviewed
by:
Felice Batlan , Department of History, New York University .
Published by:
H-Law
(September, 2001)
Divorce and the Meta-Narrative of History
Recently the realm of divorce law has attracted the attention of legal
historians and theorists who have realized that it provides, not a
backwater, but a fertile arena in which to explore the intersections of
statutory law, appellate law, trial law, social change, popular culture,
gender, and the complicated behavior of individual litigants cast in the
role of adversaries but formerly lovers, intimates, and family members.
Perhaps in no other area of law have formal requirements and rules so
differed from the lived realities of peoples' lives. Furthermore, within
these interstices appear the age-old questions: does law shape culture, does
culture shape law, or are the two are one and the same? Recently, two
valuable books--by Hendrik Hartog and Norma Basch[1]--present remarkably
rich and complicated narratives of the changing course of American divorce
law in the nineteenth century and the multitude of ideologies that shaped
it. J. Herbie DiFonzo's Beneath the Fault Line, which appeared before
the studies by Hartog and Basch, also provides a welcome history of divorce,
focusing on the twentieth century.
DiFonzo, an associate professor of law at Hofstra University, begins his
well-researched book somewhat teleologically by posing the question how and
why law and popular attitudes towards divorce changed over the course of the
twentieth century; by the 1970s no-fault divorce and living-apart statutes
became common across the United States, replacing fault-based divorce
regimes. Counterintuitively, his central thesis is that the liberalization
of divorce laws was often a conservative move by legislatures intent upon
slowing divorce rates. In practice, however, these laws had no such effect.
In exploring this thesis, DiFonzo examines not only cases, statutes, and
scholarly works, but also a vast number of articles appearing in popular
magazines between World War I and the 1950s, in an effort to trace changing
cultural and popular understandings of divorce.
In
Chapter 1, "The Feminization of Divorce after World War I," DiFonzo posits
that the emergence of the New Woman, which included a widespread perception
of greater economic opportunities for women in the labor force as well as a
transition from an ideology of domesticity to that of individualism, ushered
in a new popular (if not legal) acceptance of divorce. DiFonzo makes a
number of important points in this chapter that reflect his nuanced
understanding of the interactions between law on the books and the ways that
litigants, asserting their own agency, shape legal practice. DiFonzo writes,
"[D]ivorcers co-opted the trial bench, by and large, ignoring the fault
threshold to divorce encoded in statute and case precedent and substituting
a formulaic ritual which masked the underlying reality of mutual consent....
Thus, the vanguard of dissolution-minded spouses indeed made law outside the
normal registers of legislative and appellate mandate" (p 16). Thus, DiFonzo
sets up a dialectic, which runs throughout his book, between formal law and
lived law.
Although his argument is adroit, more troubling is DiFonzo's
periodization--especially where and how he decides to begin his narrative.
DiFonzo leaves his reader with the impression that in the 1920s divorce
became both feminized and popularized, representing discontinuity with the
past. Such a claim is problematic. As Norma Basch has demonstrated by
analyzing nineteenth-century trial court records, long before the second
decade of the twentieth century divorce was a women's remedy, often for
abandonment. Likewise, one of Hendrik Hartog's most profound contributions
is his demonstration that throughout the nineteenth century husbands and
wives, often ignoring the legal process altogether, abandoned one another
(typically the husband abandoning the wife), moved, re-married, and
fashioned new identities for themselves. In light of their work, both the
question of how the post-World War I period represents either continuity or
discontinuity, and the ways that popular culture may have reflected or
distorted the era's character, seem more complicated and less transparent
than DiFonzo allows.
Furthermore, DiFonzo's argument regarding changing gender roles also seems
incomplete. To be fair, he is attempting to present a synthetic history of
women's gradual "emancipation" in the first half of the twentieth century;
in the process, he does a good job synthesizing a wealth of material. His
book lacks an understanding of gender as a relationship of contextualized
power, however. Thus, for example, we must question what divorce by "mutual
consent" actually meant and the differing impacts that divorce laws may have
had on a wide variety of women across races and economic classes. Related to
this issue are the ways in which divorce laws also served to regulate gender
boundaries and the family, while serving a state-building project intimately
related to a particular vision of Americanization and the stability of the
family.
For
instance, Eileen Suarez Findlay's recent work on Puerto Rico provides
important insight about American divorce at the turn of the twentieth
century and its relationship to gender, imperialism, and the state.[2]
Indeed, part of the program of the colonialization by the United States of
Puerto Rico included the adoption of greatly liberalized divorce laws (1902)
in an attempt to make marriage itself more enticing. Findlay writes that
access to divorce unleashed a flood of initial support for U.S. rule, and
Puerto Rican women descended upon the courts seeking divorces.[3] Findlay's
account again demonstrates some of the problems with DiFonzo's periodization
and also raises the fascinating question of the role of U.S. divorce law in
fashioning support for U.S. imperialism, which must be understood as at
least one component of U.S popular culture.
Even
though DiFonzo's understanding of the conjuncture of divorce and gender is
not entirely satisfying, he deftly demonstrates how the law of divorce
tracked other legal trends, while he adds a number of illuminating twists.
In doing so, he reads divorce law back into the larger narrative of
jurisprudence through which legal historians and theorists understand the
changing shape of American law during the course of the twentieth century.
Divorce law in the late nineteenth and early twentieth centuries, which only
recognized fault (primarily in the form of desertion, cruelty, and adultery)
as grounds for divorce, was an example par excellence of legal
formalism in which form presided over substance and fact. The technical
grounds of fault provided a ritualistic legal foil allowing trial courts to
ignore the facts as long as fault was properly articulated and the litigants
mumbled the correct words.
Indeed
when both parties agreed sub silentio on the divorce, no party had
any incentive to file an appeal, giving the trial courts essentially free
rein to engage in this legal charade. DiFonzo recites the by-now well-known
New York State divorce antics of hotel-room set-ups meant to produce
photographic evidence of adultery. DiFonzo concludes that the trial bench
supported easy access to divorce and often, in practice, expanded the
grounds of cruelty to encompass incompatibility. Yet unlike legal formalism
in the arenas of contact, tort, and property, legal formalism vis-a-vis
divorce seems a much more benign, even positive phenomenon, essentially
creating a zone of privacy for divorcing couples and allowing for individual
agency, again demonstrating the importance of context over labels.
By the
1930s, some states began to contemplate reforming fault-based divorce
regimes to allow for non-fault-based causes, such as incompatibility and
living-apart statutes. In 1933, New Mexico
was the first state to amend its divorce laws to add incompatibility as a
ground for divorce. Even so, as DiFonzo demonstrates, New Mexico's appellate
courts were left to demarcate the boundaries of this new legal category of
"incompatibility" and to determine whether fault and recrimination could
still be recognized in incompatibility cases. Over the course of decades,
New Mexico's Supreme
Court produced a series of often-inconsistent opinions, demonstrating the
continuing sway of fault-based divorce jurisprudence in the minds of
appellate judges. Living-apart statutes ran an equally tortuous route, as
divorcing couples found it easier to play the fault game then to spend years
living apart before divorcing. DiFonzo argues that legislatures enacted such
statutes not to facilitate divorce but rather to stem the tide of divorces.
Divorcing couples refused to take the bait. Those who did, however, at times
confronted hostile appellate courts that read into these statutes numerous
restrictive requirements. DiFonzo thus sets forth a pattern in which
legislatures, trial courts, and divorcing couples, each for disparate
reasons, attempted to move away from a regime of fault, while appellate
courts often frustrated such attempts. In the period following World War II,
divorce increasingly came within the purview of family courts, where law and
a culture of therapy merged. Under the guise of psychological expertise,
family court judges (such as Paul Alexander of the Toledo, Ohio family court)
attempted to stem the tide of divorce. No longer would the fault of one
party, or even mutual consent, necessarily result in a divorce decree.
Rather, divorce-seekers were redefined as mentally ill and in need of expert
guidance and treatment. Thus, the judge, along with other experts, now
became the arbiter of the health of the marriage rather than the couple
themselves, as various courts experimented with enforced reconciliation.
Similarly, the move away from viewing divorce cases as adversarial
proceedings helped to reshape attorneys' roles from representing an
individual client to expressing concern for the health of the entire family.
DiFonzo stresses that therapeutic family courts reflected a fad within the
law towards sociological jurisprudence and interdisciplinary
collaboration--a reaction against the legal formalism of the long nineteenth
century. Although the story of the move to expertise and science has been
told many times, DiFonzo once again makes the convincing argument that the
formalism of the fault system of divorce provided greater leeway for
self-autonomy then that derived under a combined legal/social work regime,
in which a court sought to substitute its assessment and its decision for
those of the couple seeking divorce.
Surprisingly, unlike other historians who have written about family courts,
DiFonzo does not discuss the ways that court-enforced reconciliation
hampered the efforts of wives to escape marriages. As he acknowledges
throughout his study, it was women who, historically as well as today, most
often seek divorces. Thus, state efforts to prevent divorces must also be
understood as having gendered implications and as being, at least in part,
efforts to control women and to enforce a particular norm of what
constitutes the appropriate family. Indeed, we need to provide a
theoretically-grounded explanation, taking account of the conservatism of
the Cold War era, for the emphasis after World War II on maintaining the
intact family through divorce reform. Historians such as Elaine Tyler May
and (more recently) Laura McEnaney are beginning to explore the Cold War's
effect on changing perceptions and ideologies of the role of the family, and
the complicated, although crucial relationship between foreign and
"domestic" politics.[4] One of the next fruitful steps in legal history
should be to begin integrating and conceptualizing divorce law into these
theoretical paradigms.
And
yet, as DiFonzo writes, by the 1960s family courts, along with juvenile
courts, were beginning to fall into disfavor. The divorce bar resented the
loss of fees and of its monopoly over knowledge and power, which it now had
to share with a bevy of social workers and psychologists.[5] The psychiatric
profession began to doubt the effectiveness of mandatory counseling and,
perhaps most important, states began to notice the high cost of staffing
such courts.
DiFonzo documents
California's efforts
at divorce reform as illustrative. In 1966, Governor Edmund G. Brown
appointed a commission to study family law. The commission produced a
report, influenced by recent proposals and reforms in England, that strongly
endorsed a non-adversarial, therapeutic family court with jurisdiction over
marital dissolution. Such courts would rely upon a cadre of professional
staff charged with determining whether a marriage was beyond repair. In
addition, they would provide marital counseling, and exert not
inconsiderable pressure on the parties to reconcile. Although the
legislature rejected the creation of a statewide system of family courts,
Governor Ronald Reagan signed into law the Family Law Act of 1969, which
eliminated fault from the state's law of divorce. In 1972, the California
Supreme Court ruled that a couple's consent to end their marriage could not
substitute for the court's own determination of irreconcilable differences.
Trial courts, however, repeating patterns established earlier in the
century, refused to deny divorces.
In his
last full chapter, DiFonzo writes the following enigmatic words about the
legal reforms resulting in no-fault divorce: "These radical changes in the
formal legal system had stripped the process of its cultural authenticity by
artificially accelerating the tendencies toward a socially atomistic and
destructive form of individualism.... No fault, this new paradigm in family
law, constitutes nothing more elegant than naked divorce" (170). Thus, it
appears that DiFonzo believes that he has written a narrative of change over
time. Yet a reader might discern a different narrative trajectory implicit
in the text--one not of change but of continuity. As DiFonzo demonstrates,
throughout the century, in one way or another, married couples divorced and
the formal legal rules consistently seemed to have meant little, as couples
and their lawyers learned to play by whatever rules were in place. DiFonzo
writes, however, that no-fault divorce, or divorce on demand, was the
symptom of individualism run amok in a "society with a fervid disinterest in
preserving relationships" (p. 172). This charge seems easily made but
extremely difficult to unpack. For instance, the gay and lesbian rights
movement has spent years fighting to have the law recognize same-sex
marriages. People divorce but they also continue to remarry. Indeed, exactly
what society, people, and relationships are we talking about? How do we even
begin to measure such a claim?
DiFonzo has produced an immensely readable book filled with ideas. Yet too
often he drops the various threads of his argument. For instance, at times,
especially for the post-World War I period, he pays particular attention to
popular culture, mostly in his reading of popular magazine articles. Yet
when he turns to legal reforms in the post-World War II period, his analysis
of popular culture fades. Likewise, what might be labeled "women's
emancipation" plays a large role in DiFonzo's pre-World War II narrative but
fades in the period following World War II. Furthermore, the lack of any
discussion of the women's liberation movement or texts such as Betty
Freidan's The Feminine Mystique are particularly startling omissions.
Nevertheless, DiFonzo makes a substantial contribution to the literature on
twentieth-century American divorce, primarily through his complex
understanding of the state and the ways in which its various components--the
legislature, reform commissions, appellate courts, and trial courts--worked
at cross-purposes, while individuals caught in the system's matrix
continually adopted to the rules of the game.
Notes
[1]. See Hendrik Hartog, Man and Wife in
America:
A History
(Cambridge: Harvard University Press, 2000); Norma Basch, Framing
American Divorce: >From the Revolutionary Generation to the Victorians
(Berkeley: University of California Press, 1999).
[2].
See Eileen J. Suarez Findlay, Imposing Decency: The Politics of Sexuality
and Race in
Puerto Rico,
1870-1920
(Durham, N.C.: Duke University Press, 1999).
[3].
Findlay, Imposing Decency, 112.
[4].
See Elaine Tyler May, Homeward Bound: American Families in the Cold War
Era (New York: Basic Books, 1988); Laura McEnaney, Civil Defense
Begins at Home: Militarization Meets Everyday Life in the Fifties
(Princeton, N.J.: Princeton University Press, 2000).
[5].
Although DiFonzo does not make the point, many of these social workers were
women.
Library
of Congress
Call Number: HQ834.D49 1997
Subjects:
*
Divorce -- United States -- History -- 20th century
*
Divorce -- Law and legislation -- United States -- History -- 20th century
Citation: Felice Batlan . "Review of J. Herbie DiFonzo, Beneath the Fault
Line: The Popular and Legal Culture of Divorce in Twentieth-Century
America," H-Law, H-Net Reviews, September, 2001. URL:
http://www.h-net.org/reviews/showrev.cgi?path=25691001523106.
“This insightful account of American divorce from its
growing acceptance in the 1920’s to the advent of no-fault divorce in the
1970’s…will shock readers who believe that the no-fault revolution was the
result of popular pressure to eliminate the dissembling of the fault regime
by liberalizing the law. On the contrary, the move toward no-fault, DiFonzo
insists…represented an effort to channel the divorce process into the
therapeutic, marriage-saving environment of a newly created family court
system…[I]n the future nobody will be writing about modern American divorce
without addressing DiFonzo’s provocative conceptualization of its
transformation.”
Norma Basch, review of Beneath the Fault Line: The
Popular and Legal Culture of Divorce in Twentieth-Century America, by
Herbie J. DiFonzo, The Journal of American History 85 (June 1998):
321-322.