Term Paper on "Sociology Family Issues Divorce, Property & Women"

Term Paper 6 pages (1725 words) Sources: 1+

[EXCERPT] . . . .

Sociology Family Issues

Divorce, Property & Women's Rights

Throughout history the inequality of the experience lived by men and women have been quiet different in terms of equality. Although it may appear that women are on equal standing with men in some areas, a closer look, especially historically speaking, tells a completely different story. The purpose of this work is to research and examine women's rights in divorce issues in terms of property and children as well as the historical movement and shifts in those rights.

nineteenth-century rights movement group made up of women claimed that wives had the right to share joint rights and ownership in property and assets of the marital household because of the labor they contributed to the household. Next came the movement of economical elements in which women began to work outside of the home. Siegel states that: "The law is wholly masculine, it is created and executed by our type or class of the man nature.... The law, then, could give us no representation as women, and therefore, no impartial justice..." The feminist movement first demanded equality in law during the movement in the years preceding the Civil War.

Siegel 1994 states that:

Some may find it difficult to imagine that a debate over wives' household labor occurred in the nineteenth century, but our "common sense" intuitions about the normal subject of political debate were formed in the aftermath of the industrial revolution, rather than at its inception."

In the beginning of the nineteenth century a common law that was inclusive of elements of hierarchy that imposed severe restraints on the lives of women. Although men were commanded by law to support his wives he was in return given use of all of her property or real property and had absolute rights in the property. If the woman outlived the man then the wife would receive a one-third share of his estate and lifetime tenancy rights.

Changes were beginning to be seen by the year of 1840 with many states already making modification to the marital status as expressed in "common-law." Finally the legislature began to apply reforms to the common law in relation to marital status as the legislation of women's transaction rights and severing husband's ownership of their wives wages.

The 1860 statute passed in New York under the title of the 1860 earnings statute, adds expands the rights of wives in terms of granting the wives the edibility to legally engage in certain type so transactions and to do so by their own right.

Idealistic Thought on Joint Property Ownership:

During the nineteenth century advocates for women's rights "insisted that the contribution of a wife to the household thereby gave to her the right to share in the assets of the family. What is referred to as the "cult of domesticity" developed in the nineteenth century, very early decades. Stated in the work of Siegel is that:

With the spheres of work and family gendered male and female, marriage was redefined as economic dependents of their husbands. "Ironically', Nancy Folbre observes, "the moral elevation of the home was accompanied by the economic devaluation of the work performed there." (Siegel 1994)

History of the Law of Women's Rights:

The law of separation and marriage is determined by the state courts interpreting the different changes and shifts in the laws of that state. In the case Barber v. Barber,(44) the jurisdictional constraints came to light. In 1858 the U.S. Supreme Court heard the case of Barber and awarded the wife separate maintenance to be paid by her husband who had abandoned but was still by law married to her. The husband then moved to the State of Wisconsin and although she followed him to Wisconsin the husband posed a roadblock to her

Federal suit and Mrs. Barber was orders to the status of being separated, but married with her own domicile. Prior to this time the jurisdiction of the wife was where ever the husband resided. Thus began the, "albeit in dicta, that domestic relations matters should be relegated to state courts." (Grossman, 1992; Hartog 1994).

In the historic case of McGuire v. McGuire (54) Linda McGuire who was existing in "abject poverty" due to her husband's stinginess filed for assistance in a Nebraska court to enforce the duty of his support. The court stated that since she and her husband were not separated that it was considered an "intact" union and was a hands-off zone for legislation of the law.

Throughout, he emphasizes neither abstract governing law, nor the private emotions and values, but their points of intersection. His skillful illustration of how law sometimes shaped private marriages, but more often bent to accommodate them even at the expense of theoretical purity, makes this book a uniquely valuable contribution to the historiography of marriage.(12)" (Grossman 2001)

Divorce Rates:

During the decade of the 1880's one of every twenty-one marriages ended in divorce and the figure grew to one out of every nine marriages ending in divorce by the year 1916. Due to the divorce rate a debate ensued concerning legal rights in a divorce. Conservatives did not succeed in the enactment of a divorce code that was uniform in nature the abolishment of the omnibus clauses in restricting rights of remarried were done away with. The rate of divorces grew during the 1920's and dropped in number during the depression years. However, rising again in the 1930's and then skyrocketing during the Second World War succeeded in completely destroying efforts by the conservatives to reduce the rate of divorce. The following factors are blamed for the divorce rate:

Growing opportunities for self-support among females

Increasingly expansive definitions of cruelty

Adoption of the: "irreconcilable differences" ground for divorce shift toward consensual divorce

Divorced gained the status of that of a "major social issue" in the last part of the nineteenth century as well as the first part of the twentieth centuries due to the rising rates in divorce. The feminists hoped for a broadening in the access of divorce while the liberals wanted tougher laws and more traditional elements of morality in an effort of reducing the rate of divorce.

Many were the suggested remedies for divorce and conservative continued to preach the "moral breakdown" theme Those who wanted or sought divorces were declare to be: "neurotic, abnormal and infantile." insight into the marriage itself is important (though not new), for a purely non-legal history of marriage is surely incomplete. Letters, diaries, journals, and memoirs from the nineteenth century are restricted to the elite classes.(18) Prescriptive literature about the proper way to conduct a marriage, for example, is of limited value without some evidence that the prescribed ideals actually affected human behavior." (Grossman 2001)

The divorce rate peaked out in 1946 and dropped before finding a level in the 1950's and 1960's. However the rise of divorces began once more in the middle 1960's and fueled by high expectations of marriage and the renaissance of the wives moving into the workforce, feminism's birth and the no-fault divorce in nearly all U.S. states the situation became more problem filled. Basch, in the work entitled Framing American Divorce: From the Revolutionary Generation to the Victorians contends that:

that the evolution of divorce in America was intimately linked to revolution. "The Declaration of Independence," she argues, "at once explained, decreed, and sanctified a divorce from the bonds of empire; and from the bonds of empire to the bonds of matrimony, it was but a short conceptual step"

According to Hartzog and then Grossman:

Trial court records in both divorce and separation cases can also be used to understand marriage itself. Prior to the no-fault revolution beginning in the late 1960s, all states insisted that divorce be, at least in form, an adversarial process.(28) a divorce was a remedy granted to an innocent party who could prove she had been wronged on one of the grounds recognized by the state.(29) the prohibition of consensual divorce had two consequences. First, a divorce could not be granted by default when one party failed to appear;(30) the plaintiff in such a case still had to present evidence of the grounds alleged.(31) Second, even where defendants did appear, a court could not grant a divorce based solely on an uncorroborated confession of the defending spouse.(32) Consequently, most trial records contain a detailed complaint setting forth the alleged wrongs as well as testimony of at least one witness corroborating the allegations. The conduct that leads spouses to seek a divorce or separation reveals something about the expectations they held for marriage." (Grossman 2001)

There still exists inequality in the areas of divorce and property settlements in that although the wife may be entitled to joint or equal rights of ownership. Often the wife is unable due specifically to the divorce to be without means for payment on any property that she may hope to retain in their possession. The same is true of child custody in that the husband often has the… READ MORE

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