digitalcommons.nyls.edu Faculty Scholarship Articles & Chapters 1993 History's Double Edge: A Comment on Modernization of Marital Status Law Symposium: Divorce and Feminist Legal Theory Richard H. Chused New York Law School, [email protected] Follow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chapters Recommended Citation 82 Geo. L.J. 2213 (1993-1994) This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Articles & Chapters by an authorized administrator of DigitalCommons@NYLS. History's Double Edge: A Comment on Modernization of Marital Status Law RICHARD H. CHUSED* Some of you might wonder why a symposium on divorce and feminist legal theory would begin with a discussion of history. What could the married women's property and earnings acts, now relegated to the mists of history, possibly have to say to those concerned about contemporary family law? Professor Reva Siegel has erased all doubts about the wisdom of looking to history for the creation of a symposium agenda. Her work has immeasurably enriched our understanding of nineteenth-century reforms of married women's property law. By telling us about the "joint property" claim,1 clarifying the meaning of the earnings statutes adopted before and after the Civil War, and establishing ideological links between various reform eras, she has raised a set of questions that could fill the topical needs of several more symposia like this one. Professor Siegel's papers fill some gaping holes in the historical under- standing of married women's property regulations. Prior to her work, the orthodox history of this area largely ignored the joint property claim, neglecting its roots in early abolitionist and utopian communities and its broad acceptance by pre-Civil War ultraists. Historians claimed that the earliest married women's property reforms enacted before 1848 appeared because of the developing cult of domesticity, the need to rid property markets of impediments to transfer, and concern for debtors during the depression of the late 1830s and early 1840s. Although scholars noted that feminist efforts to influence legislatures began at about the same time women met at the famous Seneca Falls Convention of 1848, lobbying by women supposedly had little influence on earlier reforms.2 Work on post Civil War reforms has also ignored the joint property claim. The relation- * Professor of Law, Georgetown University Law Center. My thanks go to the Georgetown Law Journal and The Georgetown University Law Center for sponsoring this symposium, which has produced a wonderful set of papers. Special credit for organizing the event goes to my colleague Mitt Regan, whose energy and talent attracted a gifted set of thinkers to Georgetown. 1. Professor Reva Siegel's paper for this symposium should be read together with a companion piece, Reva B. Siegel, Home as Work: The First Woman's Rights Claims Concern- ing Wives' Household Labor, 1850-1880, 103 YALE L.J. 1073 (1994), which describes in great detail the contours of the "joint property" rights movement. That article briefly discusses the contours of the earnings statutes taken up more completely in the present symposium. My comments are sparked as much by Home as Work as by her work for this symposium. See Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings,1860-1930, 82 GEO. L.J. 2127 (1994). 2. See Richard H. Chused, Married Women's Property Law: 1800-1850, 71 GEO. L.J. 1359 (1983). See generally NORMA BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH-CENTURY NEW YORK (1982). 2213 2214 THE GEORGETOWN LAW JOURNAL [Vol. 82:2213 ship between the Civil War era's attraction to contractarian theories of property and the later married women's property and earnings statutes has been carefully parsed,3 but no one before Professor Siegel has traced the lengthy web of connections between the earnings statutes, suffrage claims, family law, and nineteenth-century feminist theories about property. As one of those responsible for propagating the orthodoxy, at least with respect to married women's property acts passed before 1850, I believe that Professor Siegel's work indicates the need for further review of the nexus between feminist movements and married women's property law- even for the earliest antebellum legislation. Although women's conven- tions and large scale legislative lobbying probably did not blossom until the era of the Seneca Falls gathering in 1848, many of the theoretical roots for that meeting developed in earlier times. There probably are links between married women's property acts adopted in the 1830s and 1840s and the then extant feminist legal theories that were not noticed by myself and others writing about the early legislation. Investigating that possibility is one purpose of this comment. The other is to explore some of the links between Professor Siegel's work and the contemporary debates on the economic consequences of divorce. I. HISTORICAL REAPPRAISAL It is impossible to gainsay the intimate relationship between property law and family law. Given the existence of no-fault divorce statutes in all states, contemporary practitioners and academics spend more time on the economic consequences of splintering families than on the underlying reasons for their demise.4 The historic roots of this link between property and divorce run deep. When, for example, Maryland adopted its first general divorce statute in 1842, after a half-century of reliance upon private acts adopted by the state legislature to control family dissolution,5 the courts were given full power to award alimony to the wife and to award to the wife such property or estate, as she had when married or the value of the same or of such part thereof as may have been sold or converted by the husband, 3. The best example of this work is Amy Dru Stanley, Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation, 75 J. AM. HIST. 471 (1988). 4. All the papers in this symposium, of course, focus on the economic aspects of divorce. For additional consideration of this topic, see, e.g., MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY: THE RHETORIC AND REALITY OF DIVORCE REFORM (1991); LENORE J. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSE- OUENCES FOR WOMEN AND CHILDREN IN AMERICA (1985); Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and its Aftennath, 56 U. CIN. L. REV. 1 (1987). 5. The story of this private act era is told in my just-released book, RICHARD H. CHUSED, PRIVATE ACTS IN PUBLIC PLACES: A SOCIAL HISTORY OF DIVORCE IN THE FORMATIVE ERA OF AMERICAN FAMILY LAW (1994). 19941 HISTORY'S DOUBLE EDGE 2215 having regard to the circumstances of the husband at the time of the divorce, or such part of any such property as the court or chancellor may deem reasonable .... This provision had several important consequences. First, aside from alimony, ex-wives had no claim upon any property brought to a marriage by a husband, regardless of whether he owned the asset before marriage or obtained it during the marriage. Although women of intact marriages might claim dower upon the death of a landed husband,7 that right disappeared upon divorce. Second, a woman could ask the divorce court to restore property she brought to a marriage, but the court was not obligated to give it to her. Courts could, and surely did, take into account the "circumstances of the husband at the time of the divorce." They were also allowed to return to the wife a "reasonable" portion of the property. Put more crassly, it was proper to return less than all the assets a woman brought to the marriage. If the court felt she did not need or deserve the property, there was no requirement that it be restored. Third, a woman could make no greater claim to property she brought to the family after marriage than she could to property she owned prior to her wedding. This was serious business. Common law rules in effect throughout the United States in the early part of the nineteenth century gave all the personal property, save intimate paraphernalia, of a wife to her husband once he (as routinely occurred) reduced it to his possession. Nothing in the divorce statute required the court to return any of this property upon divorce. All real property of a married woman was subject to her husband's management and control. While divorce terminated the management right, it would not automatically terminate encumbrances validly imposed on the land prior to the divorce. Many states, including Maryland, provided one limited escape route from the common law property rules. A male property owner could convey assets to a married woman in the form of an equitable separate estate. The documents establishing such an estate usually created a trust, named male trustees to manage the property, and specified the powers the married woman could exercise over the assets. Unless she was explicitly granted authority to order the trustees to convey the property during her life, dispose of the assets at her death, or manage the holdings in accordance 6. An Act to Give to the Chancellor and the County Courts as Courts of Equity Jurisdic- tion in Cases of Divorce, ch. 262, 1841 Md. Laws (1842). 7. Traditional common law dower allowed women to claim, ahead of creditors, a one-third life estate in property held by the husband at any time during the marriage. Many modifica- tions to this rule were made in various states, including removal of the preference over creditors, application of the interest only to property actually held by the husband at his death, and easier methods of paying out dower in cash rather than land.