Chapter XVII (7)

By the law of Hawaii both kinds of divorce are provided for. Separation from bed and board forever or for a limited time will be granted when either spouse has been guilty of (1) excessive and habitual ill-treatment; or (2) habitual drunkenness; and (3) to the wife for the husband's neglect or refusal to provide her with the necessaries of life. At any time, on joint application of the persons, with satisfactory evidence of reconciliation, the decree of separation may be revoked by the court. According to a unique scheme, the grounds of absolute divorce are arranged in two groups: (1) A marriage will be dissolved, on petition of the aggrieved, when either consort has (_a_) committed adultery; (_b_) is guilty of three years' wilful and utter desertion; (_c_) has been sentenced to imprisonment for life, or for seven years or more, no pardon effecting a restitution of conjugal rights; or (_d_) has contracted "the disease known as Chinese leprosy, and is incapable of cure." (2) When one of the married persons has been guilty of (_a_) extreme cruelty; or (_b_) habitual drunkenness; and (_c_) when the husband, being of sufficient ability to provide suitable maintenance for his wife, neglects or refuses so to do. But it is especially enacted that if the person applying for a decree "shall not insist upon a divorce from the bond of matrimony, a divorce only from bed and board shall be granted." Jurisdiction is vested in the circuit courts of the circuit where the persons last cohabited as husband and wife; but no divorce for any cause will be allowed if they have never so lived together in the territory.[508]

[508] _Civil Laws of the Hawaiian Islands_ (1897), 715-21.

_c_) _Remarriage, residence, notice, and miscellaneous provisions._--It has been found convenient in the preceding section to trace throughout the period the development of the New York law regarding the remarriage of divorced persons. By the original statute of 1787, it thus appears, the guilty defendant is forever prohibited from marrying again. Under the acts of 1813 and 1827-28 the restriction is limited to the lifetime of the innocent former spouse; and this rule is retained in the present law, although in harmony with the practice elsewhere widely prevailing, the parties to the action are at liberty to renew their matrimonial vows. The defendant, however, may marry again in case the court in which the judgment is given "shall in that respect modify such judgment, which modification shall only be made upon satisfactory proof that the complainant has remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good."[509] At no time, apparently, has any legal check been put upon the immediate remarriage of the successful plaintiff after final decree; and a way has been found by which the guilty defendant may at once contract further wedlock through evasion of the statute. In 1881 the precedent established by Massachusetts in 1829 was followed by the New York court of appeals. It was then decided that when a husband who has been divorced in New York for his adultery "goes into another state for the purpose of evading our law, and there contracts a second marriage during the lifetime of his former wife, and immediately returns to and resides within this state, such second marriage is, nevertheless, valid, and the issue thereof legitimate."[510] On the other hand, it is held that the restraint applies to the remarriage of divorced persons even when the divorce was granted in another state. Thus dower was "denied on a showing that the deceased husband, while a resident of Massachusetts, had been divorced from his wife for his fault and later had removed to New York and married the plaintiff while his former wife was living. It was held that the New York statutes governed whether the divorce was granted in that state or not, so long as the marriage was celebrated in New York."[511] But elsewhere the courts have taken the opposite position, holding that the restraint on remarriage applies only to divorces granted in the state where it is imposed.[512]

[509] _Rev. Stat._ (1889), IV, 2599; STOVER, _Code of Civil
Proced._ (1902), II, 1843. _Cf._ 5 BARBOUR, _Chancery Reports_,
117; 11 _N. Y._, 228; 34 _N. Y._, 643; 42 _N. Y._, 546; 2 HUN,
_N. Y. Supreme Court Reports_, 241; 92 _N. Y._, 146.

[510] Van Voorhis _v._ Brintnall, 86 _N. Y._, 18; reversing s.c.
23 HUN, _N. Y. Supreme Court Reports_, 260; as summarized in
BRIGHTLY, _Digest of the Decis. of all the Courts of N. Y._, II,
2531, 2532, where the later cases are cited. _Cf._ especially
Thorp _v._ Thorp (1882), 90 _N. Y._, 602; and Moore _v._ Hegeman
(1883), 92 _N. Y._, 521.

[511] H. J. WHITMORE, "Statutory Restraints on the Marriage of
Divorced Persons," _Central Law Journal_, LVII, 447; Smith _v._
Woodworth, 44 BARBOUR, _Chancery Reports_, 198.

[512] Bullock _v._ Bullock, 122 _Mass. Reports_, 3; Clark _v._
Clark, 8 CUSHING, _Mass. Reports_, 385; Succession of Hernandez,
46 _La. Ann._, 962; 15 _So. Rep._, 461.

During the century the statutes of New Jersey have in effect, though not expressly, allowed either person absolute freedom of remarriage after divorce.[513] A different rule has been followed in Pennsylvania and Delaware. By a law of the former state in 1785, "he or she, who hath been guilty of the adultery, may not marry the person with whom the said crime was committed, during the life of the former husband or wife."[514] This provision is still in force; and, except in the single case specified, the law of that state puts no restriction whatever upon the remarriage of either person after a decree dissolving the marriage tie. Since 1832 with respect to remarriage the law of Delaware has in substance been identical with that of the sister-commonwealth, except that the prohibition of marriage with the paramour is not confined to the lifetime of the former spouse.[515]

[513] The law provides that the penalties for "polygamy" shall
not extend to persons marrying after having been lawfully
divorced from the bonds of matrimony: _Gen. Stat. of N. J._, I,
1057. _Cf._ _ibid._, II, 1267 ff.

[514] _Cf._ the act of 1785: CAREY AND BIOREN, _Laws of the
Com._, III, 105; PEPPER AND LEWIS, _Digest_, I, 1646, 1647.

[515] _Cf._ the act of February 3, 1832: _Laws_, 150, with _Rev.
Stat. of Del._ (1893), 598.

By their complete silence on the subject the statutes of Ohio appear always to have allowed either person entire freedom of remarriage after divorce. Since 1831 the same liberty has been expressly granted by the laws of Indiana;[516] except that when the defendant has been "constructively" summoned without other notice than publication in a newspaper, the person obtaining a decree of divorce is not permitted to marry again until the expiration of two years, during which period the judgment may be opened at the instance of the defendant.[517] But by the original act of 1818 the offender is not released from the bonds of matrimony while his former spouse is living.[518] This restriction is maintained by the statute of 1824, unless the court in its discretion, "judging from the circumstances of the case," shall expressly grant a release.[519] In 1825 the legislature of Illinois required the court in a decree of absolute divorce to prohibit the offender from remarrying within two years.[520] After 1827 this provision was dropped;[521] and at present Illinois, like New Jersey, through the remission of the penalty for bigamy allows entire freedom in this regard.[522] Michigan began with a severe rule. The territorial enactment of 1819 forbids the defendant adulterer to wed again until the complainant be actually dead.[523] This provision was not long retained; and the existing statute permits the court to decree that the person against whom any divorce is granted shall not marry again within any period not exceeding two years.[524]

[516] _Rev. Laws of Ind._ (1831), 214; _Rev. Stat._ (1838), 243;
_ibid._ (1843), 606; _ibid._ (1852), II, 237; _ibid._ (1896), I,
sec. 1048; BURNS, _Ann. Stat._ (1901), I, 1059.

[517] _Laws of Ind._ (1873), 108, 109; _Rev. Stat._ (1896), I,
sec. 1030. This section applies only to parties "constructively"
summoned: Sullivan _v._ Learned, 49 _Ind._, 252. The general
policy of the law is against disturbing divorces granted:
McJunkin _v._ McJunkin, 3 _Ind._, 30; McQuigg _v._ McQuigg, 13
_Ind._, 294.

[518] Act of Jan. 26, 1818: _Laws of Ind._ (1818), 228.

[519] _Rev. Laws of Ind._ (1824), 157.

[520] Act of Jan. 17: _Laws of Ill._ (1825), 169.

[521] The act of June 1, 1827: _Rev. Code_ (1827), 181, allows
the injured person to obtain a dissolution of the marriage
contract; but neither this nor any subsequent statute seems
expressly to forbid the defendant to remarry.

[522] HURD, _Rev. Stat._ (1899), 565.

[523] _Ter. Laws of Mich._, I, 496; see also act of April 12,
1827: _ibid._, II, 363-66. An act of this last date (_ibid._,
II, 543), for the punishment of crime, exempts persons marrying
again after divorce from the pains of bigamy, provided they may
do so by the terms of the decree or by those of the law where the
divorce was granted. The act of June 28, 1832 (_ibid._, III, 931,
932), is silent as to remarriage.

[524] HOWELL, _Gen. Stat._ (1890), III, 3605; MILLER, _Comp.
Laws_ (1899), III, 2666.

The legislation of the newer states of the Mississippi valley and the Pacific slope discloses the same lack of harmony in dealing with the question in hand. By the laws of Wyoming, Utah, and Nevada either spouse, whether guilty or innocent, is left absolutely free to contract further wedlock as soon as he likes after divorce. At present the same is true of Iowa, although under the early enactments the guilty defendant was forbidden to remarry.[525] In Kansas, by a statute of 1855, the guilty person is restrained from marrying again during five years unless so permitted by the terms of the decree.[526] Between 1859 and 1881 entire freedom was allowed.[527] Subsequently in that state it has been "unlawful for either party ... to marry any other person within six months from the date of the decree of divorcement," or, if appeal be taken, "until the expiration of thirty days from the day on which final judgment shall be rendered by the appellate court." Marriage in violation of this statute is declared bigamy and void.[528] Nebraska since 1885, Oregon since 1862, Washington since 1893, and Minnesota since 1901, have each interdicted remarriage within the same period of six months after a decree of divorce.[529] In Idaho since 1903 the term is "more than six months;" while in North Dakota since 1901 it is but three.[530] Since 1893 Colorado has gone farther, requiring in such a case a delay of one year.[531] The same delay is required in Wisconsin since 1901;[532] while in Montana, since 1895, the innocent person must needs wait two years and the guilty person three years before renewing the marital bond with anyone save the former spouse.[533] South Dakota, when the cause is adultery, still refuses, as in the territorial stage, to permit the guilty defendant to rewed during the lifetime of the innocent plaintiff, unless, indeed, with the latter.[534] In Alaska neither party may marry a third person until proceedings on appeal are ended, or if no appeal be taken, during one year, the statutory term for bringing such action.[535]

[525] By the act of Jan. 24, 1855, the guilty party is prohibited
from remarrying: _Laws of Ia._ (1854-55), 112. The restriction
was dropped in 1858: _Laws_ (1858), 97, 98, 236: _Ann. Code_
(1897), 1135-47.

[526] _Stat. of Kan._ (1855), 312.

[527] _Gen. Laws of Kan._ (1859), 385. This and the later acts to
1881 are silent as to remarriage.

[528] _Laws of Kan._ (1889), 145; same in _Comp. Laws of Kan._
(1897), II, 276: "Every decree of divorce shall recite the day
and date when judgment was rendered in the cause, and that
the decree does not become absolute and take effect until the
expiration of six months from said time." _Cf._ the act of
March 5: _Laws of Kan._ (1881), 229-31, where the six-months'
prohibition first appears.

[529] The Nebraska law is peculiar in that, in addition to the
general prohibition of marriage in six months, it especially
forbids the defendant in error or appellee to marry again during
the pendency of proceedings in error or on appeal under the
penalties prescribed for bigamy: _Laws of Neb._ (1885), chap.
49, pp. 248, 249; _Comp. Stat. of Neb._ (1901), 582. See _Codes
and Stat. of Ore._ (1902), I, 280, 296; _Codes and Gen. Laws_
(1892), I, 458; being the same as act of Oct. 11, 1862: _Organic
and Other Gen. Laws of Ore., 1843-72_, 211, 218; _Ann. Codes and
Stat. of Wash._ (1897), II, 1599; _Laws_ (1893), 225.

[530] _Laws of N. D._ (1901), 81, 82; _Laws of Idaho_ (1908), 10,
11.

[531] _Laws of Col._ (1893), 240, 241; MILLS, _Ann. Stat._
(1897), III, 441, 442.

[532] "But upon application of such divorced person, any court of
record or presiding judge thereof, who granted the divorce, ...
may authorize" marriage within the year: _Acts of Wis._ (1901),
369.

[533] _Complete Codes and Stat. of Mont._ (1895), 480.

[534] _Stat. of S. D._ (1899), II, 1025, 1028; _Rev. Codes_
(1903), 602. This principle was adopted by the territorial
assembly: LEVISSEE, _Ann. Codes_ (1884), II, 750. Except for
a brief term in 1866, the earlier territorial laws allow
entire freedom of remarriage: see act of Jan. 12, 1866: _Laws,
Memorials, and Resolutions_ (1865-66), 14, forbidding the guilty
adulterer to remarry during the lifetime of the innocent spouse;
but in the next year this was replaced by a new law allowing
full liberty: Act of Jan. 10, 1867: _Gen. Laws, Memorials, and
Resolutions_ (1866-67), 45-52.

[535] _U. S. Stat. at Large_, XXXI, 408-10, 415.

Until very recently in California no clear restraint was put upon further wedlock after full separation. In 1897, following the example of Colorado, the legislature provided that in case of dissolution a new marriage may validly be contracted by either person only when the decree of divorce has been rendered at least one year before.[536] This amendment, it seems, was designed primarily to remedy an abuse arising in the uncertainties of California law--one often encouraged by careless legislation in the United States. Its purpose, says Judge Belcher in the opinion below cited, "was to correct a great public evil which had become too rife--to put a stop to marriages within the period allowed for the appeal from the decree of divorce, which might be and sometimes had been reversed, with great scandal to the parties who had married again." In the meantime this new and stringent provision has given occasion for still more serious evils originating in the inharmonious laws of adjacent states. The statutes of Nevada, whose borders are within easy reach of San Francisco, have not fixed a period within which divorced persons may not contract further wedlock. As a result, Reno has become the Gretna Green of California couples who there seek to evade the interdict of their own law. Whether a person who retains his domicile in California may contract a valid marriage in Nevada within less than one year after having been divorced in the former state is a question regarding which the decisions of the superior courts long contradicted one another.[537] But the supreme tribunal has just determined[538] that California in this regard is to take her place by the side of New York and Massachusetts, whose example Washington had already followed.[539] To overcome the effect of this decision, the legislature has enacted that if in any case the court "determines that a divorce ought to be granted an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce." After one year has expired, on its own motion or the motion of either person, the court "may enter final judgment granting the divorce," unless action on appeal or on a motion for a new trial is pending. "In no case can a marriage of either of the parties during the life of the other be valid in this state, if contracted within one year after the entry of an interlocutory decree." But this legislation,[540] it is believed, will be declared unconstitutional by the supreme court.[541]

[536] "Sec. 61. A subsequent marriage contracted by any person
during the life of a former husband or wife ... , with any person
other than such former husband or wife, is illegal and void from
the beginning unless:

"1. the former marriage has been annulled or dissolved; provided,
that in case it be dissolved, the decree of divorce must have
been rendered and made at least one year prior to such subsequent
marriage."--Act of Feb. 25: _Stat. and Amend. to the Codes_
(1897), 34.

"Sec. 91. The effect of a judgment decreeing a divorce is to
restore the parties to the state of unmarried persons."--Act of
March 30, 1874: _Amendments to the Codes_ (1873-74), 189; also
in DEERING, _Codes and Stat. of Cal._ (1886), II, 31; POMEROY,
_Civil Code_ (1901), 44.

[537] In Abbie Rose Wood _v._ Estate of Joseph M. Wood, filed in
the superior court of San Francisco, June 14, 1900, Judge Belcher
decided that the marriage on Jan. 1, 1898, in Reno, Nev., of a
person divorced in California, Aug. 19, 1897, the former husband
still living, was not valid. He relies upon the words of nullity
in the amendment of 1897; and the fact that the person went to
another state solely for the purpose of getting married while
still retaining her domicile in California. "Section 61, Civil
Code, contains no penal clause, as stated; but it does contain
words of nullity, and words which suspend, as to third persons,
the operation of the decree ... ; and these cannot be avoided
by merely invoking another jurisdiction for that purpose. The
two sections (61 and 91, C. C.) are to be read together, and,
so read, their interpretation and meaning are free from either
uncertainty or ambiguity. The law of the domicile is invoked,
and the law of the domicile controls. No other jurisdiction can
relieve against it."--See _San Fran. Law Journal_ (July 2, 1900),
1.

In a case decided on Dec. 10, 1900, Judge Trout, of the superior
court of San Francisco, takes the same position as Judge Belcher.

On the other hand, on Dec. 4, 1900, Judge Hebbard, of the same
court, in Adler _v._ Adler, maintains the validity of a similar
Reno marriage. He holds that the California law "is in restraint
of marriage," since it fixes an arbitrary prohibitory period. "We
may imagine the reason which induced the passage of the section,
by an examination of the law of the State of Oregon upon the same
subject. In that state there is no fixed prohibitory period, but
the law is to the effect that, pending an appeal from a decree of
divorce, if one be taken, and, if not, during the time in which
it may be taken, the parties shall be incapable of contracting
marriage with a third person. In California an appeal from a
final judgment must be taken in six months; an appeal from an
order granting or refusing a new trial in sixty days. The great
majority of divorce cases go to judgment upon the default of
the defendants, and in such cases there can be no appeal upon
the merits of the cause. When no appeal can be taken, or when
the time for appeal has gone by and none taken, why compel the
parties in the case to abstain from matrimony for the remainder
of the year thereafter? The proportion of divorce decrees
appealed from is infinitely small, and therefore the prohibition
in section 61 discriminates against the many, for the protection
of the few; it is an arbitrary law." He relies upon Pearson _v._
Pearson, 51 _Cal._, 120 (1875), construing sec. 63 of the Civil
Code to the effect that "all marriages contracted without this
state, which would be valid by the laws of the country in which
the same were contracted, are valid in this state."--_San Fran.
Law Journal_ (July 16, 1900), 1.

[538] See the Estate of Wood, 137 _Cal._ (1902), 129 ff., where
Reno marriages are held valid, three justices dissenting.

[539] In Willey _v._ Willey, 22 _Wash._ (Jan. 27, 1900), 115-21.
The courts of Oregon have taken the opposite view, holding such
marriages of residents of Oregon contracted in another state
absolutely void under the statute: McLennan _v._ McLennan, 31
_Ore._ (1897), 480.

[540] Acts of March 2 and 16, 1903, _Stat. and Amend. to the
Codes_, chaps. lxvii, clviii.

[541] It has already been so declared by Judge Rhodes in the
superior court of Santa Clara county.

Expressly or by implication the divorced couple are excepted from the restraint, and permitted to rewed in Alaska, California, Colorado, Idaho, Kansas, Montana, New York, Oklahoma, Oregon, South Dakota, Vermont, and Washington. On the question whether, in the absence of statutory authority, such remarriage of the divorced persons comes within the restraint, the decisions of the courts are conflicting.[542]

[542] Compare Moore _v._ Moore, 8 ABB., _N. C._, 171-73; Colvin
_v._ Colvin, 2 PAIGE, 385-87, denying the right of remarriage in
such cases; with Moore _v._ Hegeman, 92 _N. Y._, 521-29, where
the question is left undecided.

All of the twenty-six states under consideration have prescribed rules or conditions regarding the residence of the plaintiff in divorce suits. In nearly every instance a definite term of previous residence in the state, or in the state and in the county, of the action is fixed. This term varies from six months to three years, one year being the prevailing period. In the West the requirements in this regard are not in general so rigid as in some eastern and southern states; but during the past two decades encouraging progress has been made.

The law of New York governing residence has in the preceding subsection already been presented. A fixed term is not prescribed, except that in cases of partial divorce, when the marriage was solemnized outside the state, the persons must have "continued to be residents" of the state for at least one year, and the plaintiff must be resident at the time the action is commenced.[543] Delaware has not fixed a definite period of residence; but no divorce from the bond of matrimony will be decreed when the cause assigned therefor in the petition occurred out of the state and the "petitioner was a non-resident thereof at the time of its occurrence, unless for the same or like cause such divorce would be allowed by the laws of the state or country in which it is alleged to have occurred."[544] Delaware, like Maine and Massachusetts, has attempted to prevent clandestine divorce through evasion of the laws. "When any inhabitant ... shall go into any other jurisdiction to obtain a divorce for any cause occurring here; or for any cause which would not authorize a divorce by the laws of this state; a divorce so obtained shall be of no force or effect in this state."[545] The statute of New Jersey gives the court of chancery jurisdiction in actions for divorce when either the complainant or defendant is an inhabitant of the state "at the time of the injury, desertion, or neglect;" when the marriage took place within the state, and the complainant is an actual resident at the time the injury arose, and at the time of exhibiting the bill; when the adultery occurred within the state and either spouse is a resident thereof at the commencement of the suit; or when one of the persons, at the time of filing the bill and for the term of two years during which the desertion shall have continued, is a resident of the commonwealth.[546] When the cause is adultery committed outside the state, three years' previous residence on the part of either the complainant or the defendant is always required.[547]

[543] STOVER, _Code of Civil Proced._ (1892), II, 1640.

[544] _Rev. Stat. of Del._ (1893), 598; being the act of 1891:
_Laws_, XIX, chap. 243, p. 480.

[545] _Rev. Stat. of Del._ (1893), 598. "In all other cases a
divorce decreed in any other state or country" is valid: _ibid._,
598.

[546] _Gen. Stat. of N. J._ (1896), II, 1273; being act of March
7, 1889: _Pub. Laws_, 48. This law has existed in nearly the same
form since 1820: see act of Feb. 16, 1820: _Laws of the State_
(1821), 667.

[547] _Gen. Stat. of N. J._ (1896), II, 1273; being act of May
11, 1886: _Pub. Laws_, 345.

A term of twelve months' previous residence was established by Indiana in 1831.[548] This was increased to two years in 1838, regardless of the place where the alleged cause of divorce occurred.[549] A period of one year was again adopted in 1849.[550] Three years later the law was still further relaxed by making _bona fide_ residence in the county of the action sufficient to warrant a petition.[551] In 1859 the one-year term was once more restored,[552] only to yield in 1873 to a _bona fide_ residence of two years in the state and six months in the county; and this provision is still in force.[553] The legislation of Michigan shows similar vicissitudes. The act of 1819 allows an absolute divorce for adultery when the parties are "inhabitants" of the territory, or when the marriage was solemnized therein, and the injured person is an actual resident at the time of the offense and at the time the complaint is filed.[554] In 1832 a residence of three years was fixed for the plaintiff in both full and partial divorce;[555] but in 1838 the term was reduced to two years, and to half that time in 1844.[556] The period of one year is still sanctioned when the cause of action occurs within the state. By the careful act of May 26, 1899, no decree of divorce will be granted in any case unless (1) the plaintiff has resided in the state for one year preceding; or (2) the marriage sought to be dissolved was solemnized in the state and the plaintiff has since resided therein to the time of the petition. Furthermore, in no case will a decree be granted unless (1) the defendant is domiciled in the state when the petition is filed; or (2) was so domiciled when the alleged cause for the action arose; or (3) when he voluntarily appears at the trial, or is brought in by publication, or has been personally served with process or notice. On the other hand, when the cause of action occurs outside the state, a divorce will not be allowed unless the complainant or the defendant shall have resided in the commonwealth for two years immediately before the filing of the petition. If the defendant is not domiciled in the state at the time of commencing the suit, or when the alleged cause arose, before a decree will be granted the complainant must prove that the parties have actually lived and cohabited together as husband and wife within the state, or that the complainant has there resided in good faith for the two preceding years.[557]

[548] _Rev. Laws of Ind._ (1831), 213.

[549] _Ibid._ (1838), 243.

[550] _Gen. Laws_ (1849), 62.

[551] _Rev. Stat._ (1852), 234: of "which _bona fide_ residence
the affidavit of the petitioner shall be _prima facie_ evidence."

[552] _Laws of the State_ (1859), 108.

[553] Act of March 10: _Laws_ (1873), 109; same in _Rev. Stat._
(1896), I, sec. 1031.

[554] _Ter. Laws of Mich._, I, 495.

[555] _Ter. Laws of Mich._, III, 931.

[556] _Rev. Stat._ (1838), 337; _Acts_ (1844), 74.

[557] _Pub. Acts_ (1899), 326, 327. When the order for appearance
is served outside the state, the law requires that the fact of
service be proved by affidavit before a justice or notary whose
legal character and signature must be attested by the certificate
of a court of record. See the earlier act of 1895: _Pub. Acts_
(1895), 371; and _cf._ HOWELL, _Gen. Stat._, II, 1624; MILLER,
_Comp. Laws_ (1899), III, 2657.

Since 1785 Pennsylvania has required that the plaintiff in a suit for absolute divorce must be a citizen of the state and a resident therein at least one whole year before the action is begun.[558] The one-year term is prescribed likewise in Ohio, except when the action is for alimony alone;[559] in Illinois since 1827, unless the offense or injury complained of was committed in the state, or while one or both of the persons resided there;[560] in Minnesota since 1851, except when the suit is on the ground of adultery committed while the plaintiff was a resident of the state;[561] in Wisconsin since 1838-39, except when the cause is adultery similarly committed, or when the marriage was solemnized in the state and the plaintiff resided there from the time of such marriage to the time of bringing suit, or when the wife is plaintiff and the husband has resided in the state for one year preceding the commencement of the action;[562] in Iowa since 1838, "except when the defendant is a resident of the state served by personal service;"[563] in Colorado since 1861, unless the application is made upon "grounds of adultery or extreme cruelty when the offence was committed within the state;"[564] in Kansas since 1855;[565] in Utah since 1878;[566] in Montana since 1865;[567] in Washington since 1854;[568] in Oregon since 1862;[569] in California since 1891;[570] in North Dakota since 1899;[571] and in Wyoming since 1901.[572] In Alaska by the federal law of 1903, the plaintiff must be an inhabitant of the district for two years before suit is brought; and the same term had already been prescribed for Hawaii.[573]

[558] _Cf._ the act of June 20: _Laws of Pa._ (1893), 471; also
in PEPPER AND LEWIS, _Digest_ (1896), I, 1638, 1639; and the act
of Sept. 19, 1785: _Laws of the Com. of Pa._ (1803), III, 105.

[559] BATES, _Ann. Stat. of Ohio_ (1897), II, 2805. The law of
1827 requires two years' residence on the part of the plaintiff:
CHASE, _Stat._, III, 1581.

[560] _Cf._ act of June 1, 1827: _Rev. Code of Ill._ (1827), 182;
HURD, _Rev. Stat. of Ill._ (1898), 632: being the same as _ibid._
(1845), 196.

[561] _Cf._ _Rev. Stat. of Minn._ (1851), 274; _Gen. Stat._
(1894), I, 1268, 1269.

[562] The development of the Wisconsin law of residence may
be traced in _Stat. of the Ter._ (1838-39), 140; _Rev. Stat._
(1849), 395; _ibid._ (1858), 623-28 (in which the clause
referring to the wife as plaintiff first appears); _Ann. Stat._
(1889), I, 1368.

[563] The petition for divorce "must state that the plaintiff
has been for the last year a resident of the state, specifying
the township and county in which he or she has resided, and the
length of such residence therein after deducting all absences
from the state; that it has been in good faith and not for the
purpose of obtaining a divorce only"; and "in all cases it must
be alleged that the application is made in good faith and for the
purpose set forth in the petition."--_Ann. Code of Ia._ (1897),
1137; same in _Code_ (1873), 339. See also act of Dec. 29, 1838:
_Laws_ (1838-39), 179, 180, first fixing the period of one year's
previous residence.

[564] "Provided, further, that such suit shall only be brought
in the county in which such plaintiff or defendant resides, or
where such defendant last resided."--MILLS, _Ann. Stat. of Col._
(1897), III, 437, 438; being the act of 1893: _Laws_, 239. _Cf._
the original act in _Laws of Col._ (1861-62), 360, 361, fixing
the one-year term.

[565] _Laws of Kan._ (1897), II, 273; being same as _Gen. Stat._
(1868), 757. _Cf._ original act of 1855: _Stat._ (1855), 311.
In 1859 the term of residence was reduced to six months, but
the one-year period was restored the next year: _Laws of Kan._
(1859), 385; _ibid._ (1860), 108. Now the petitioner must be a
resident of the county of the action.

[566] See the preceding subsection.

[567] _Comp. Codes and Stat. of Mont._ (1895), 482. See _Acts_
(1864-65), 430.

[568] _Ann. Codes and Stat. of Wash._ (1897), II. 1596; _Stat._
(1854), 405-7. The term was reduced to three months in 1864,
but restored to one year in 1866: _Stat._ (1864), 13; _Stat._
(1865-66), 89, 90.

[569] When the marriage was solemnized in the state, it is
sufficient if the plaintiff be an inhabitant thereof at the
commencement of the suit. If not solemnized in the state, both
parties must be inhabitants at the commencement of the suit, and
the plaintiff for one year before (act of 1862). The plaintiff
must be an inhabitant of the state at the commencement of
the suit and for one year before; "which residence shall be
sufficient to give the court jurisdiction, without regard to the
place where the marriage was solemnized, or the cause of suit
arose" (act of 1865): _Codes and Gen. Laws_ (1902), I, 277. By
the act of 1853, in force till 1862, the term of residence was
fixed at six months: _Gen. Laws._ (1852-53), 49-51.

[570] _Stat. and Amend. to Codes of Cal._ (1891), 52. The
plaintiff must be a resident of the state one year and of the
county three months. Between 1851 and 1891 the term was six
months: Act of March 25: _Stat. of Cal._ (1851), 186, 187.

[571] _Acts_ (1899, Feb. 3), 94: The plaintiff must have been a
resident of the state in good faith for twelve months, and be a
citizen of the United States or have declared his intention to
become such citizen. By the earlier law, as at the close of the
territorial period, the term of residence was ninety days: _Rev.
Codes of N. D._ (1895), 614.

[572] _Laws of Wyo._ (1901), 4.

[573] _U. S. Stat. at Large_, XXXIII, 944. The period is two
years in Hawaii: _ibid._, XXXI, 150.

Four states are less stringent in their requirements. In Nebraska, since 1856, petition will not be granted unless the plaintiff has resided in the state for six months, except when the marriage was solemnized in the state and the plaintiff has there dwelt since the marriage to the time when the suit is commenced.[574] The same term has been required in Idaho since 1864;[575] while in Nevada, since 1861, the plaintiff must have resided six months in the county where suit is brought, unless the action is begun "in the county in which the cause thereof shall have accrued, or in which the defendant shall reside, or be found, or in which the plaintiff shall reside if the latter be the county in which the parties last cohabited."[576] Until 1899, as in the territorial stage, South Dakota required only ninety days' _bona fide_ residence on the part of the plaintiff. In that year the term was increased to six months; but in no case will a divorce be granted without personal service within the state, or, when the defendant is non-resident, personal service and order of publication "until the plaintiff shall have a _bona fide_ residence in the state for one year" next before the granting of a decree.[577]

[574] _Comp. Stat. of Neb._ (1901), 577; _Laws_ (1856), 155.

[575] _Rev. Stat. of Idaho_ (1887), 305; _Laws_ (1867), 69. The
law of residence took its present form in 1867: but the provision
of 1864, _Laws_ (1863-64), 615, 616, is identical with that of
Nevada quoted in the text.

[576] _Comp. Laws of Nev._ (1900), 115. _Cf._ _Laws_ (1861), 96,
97; and _Laws_ (1875), 63.

[577] _Stat. of S. D._ (1899), II, 1029; _Rev. Codes_ (1903),
602. The territorial law of 1883: LEVISSEE, _Ann. Codes of Ter.
of Dak._ (1884), 751, requires a residence of ninety days.

The laws of every state in this group contain some provision requiring notice to the defendant when personal service cannot be had. Such notice is given as in equity suits in Illinois and Nebraska; as in ordinary civil actions in California,[578] Idaho, Montana, Oregon, Utah, Washington, Wisconsin,[579] and Wyoming; and in the remaining commonwealths special rules regarding publication, usually in the newspapers, are in force.[580]

[578] In California and Montana summons and publication in
divorce suits are given under the general provisions for civil
actions: POMEROY, _Codes and Stat.: Civil Proced._ (1901), secs.
410 ff.; _Codes and Stat. of Mont._ (1895), 782, 796, 797. This
is, of course, not inconsistent with Sharon _v._ Sharon (1885),
67 _Cal._, 185, ruling that an action for divorce is a case in
equity under the clause in the constitution conferring appellate
jurisdiction on the supreme court.

[579] The statute of Wisconsin requires the proceedings to be as
in "courts of record" so far as practicable: _Ann. Stat._ (1889),
I, 1362.

[580] In New York, for instance, the order for publication
must direct that the summons be published "in two newspapers,
designated in the order as most likely to give notice to
the defendant, for a specified time, which the judge deems
reasonable, not less than once a week for six successive weeks;"
and unless the judge is satisfied from affidavits presented that
the defendant's residence is unknown, it must also require that
copies of the summons, complaint, and order be mailed to him at a
specified place: BIRDSEYE, _Rev. Stat._ (1896), I, 18. The laws
of Ohio and Kansas are similar: BATES, _Ann. Rev. Stat. of Ohio_
(1897), II, 2805; _Laws of Kan._ (1897), II, 273. By the statute
of Pennsylvania, if the adverse party is not found, the court may
issue an alias subpoena, and trial may be set for a later term.
If a second time personal service cannot be had, notice must be
"published in one or more newspapers printed within or nearest to
the said county for four weeks successively" prior to the first
day of the next term: PEPPER AND LEWIS, _Digest_ (1896), I, 1642.
Colorado has a careful provision. See also _Civil Laws of the
Hawaiian Islands_ (1897), 716-18; and the new law of New Jersey:
_Acts_ (1903), 122, 123.

The miscellaneous provisions regarding divorce and divorce actions are in character similar to those already mentioned for other states. In California, Hawaii, Illinois, Michigan, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, South Dakota, and Wyoming the legitimacy of the children of the marriage is expressly recognized in case of divorce. Trial by jury in the finding of facts is allowed in Illinois, Nevada, New York,[581] Pennsylvania, and Wisconsin; while in Washington it is expressly denied; and in Colorado the guilt or innocence of the defendant must be determined by the verdict in every case.[582] The statutes of Kansas, Nebraska, Ohio, Wisconsin, and Wyoming permit either consort to be a witness in the case; and by those of Illinois, Kansas, Minnesota, Nevada, Ohio, Oregon, Wisconsin, and Washington the court may authorize the woman to change her name. She is granted this privilege in Alaska only when not the person in fault. In several instances special provision is made for defending the action. According to the Indiana law, "when a petition for divorce remains undefended, it shall be the duty of the prosecuting attorney to appear and resist" the same.[583] In Colorado, when the defendant fails to appear, the court must appoint an attorney who shall secure a fair and impartial hearing of the case.[584] By the law of Oregon the state is constituted a party in such suits, and it is the duty of the district attorney, "so far as may be necessary to prevent fraud or collusion," to control the proceedings for the defense.[585] Washington has a similar law;[586] and in special cases the prosecuting attorney in Idaho and Michigan is likewise required to oppose the granting of a decree.[587] Soliciting divorce business by advertising or otherwise is sometimes prohibited under severe penalty, such being the case in California, Illinois, Indiana, Minnesota, Montana, New York, Ohio, and Washington.[588] Indiana has a unique enactment expressly declaring that a divorce legally granted in any other state shall have full effect in that commonwealth.[589] Everywhere due provision is made for alimony, care of the children, and the adjustment of property rights. There is great variation in matters of detail; but in general the laws of the middle and western states relating to these subjects are very similar to those of New England. For the purpose of the present chapter further notice may therefore be dispensed with. Only in Michigan,[590] Ohio, Illinois, and Indiana, it may be mentioned in conclusion, has any adequate provision been made for the collection and publication of divorce statistics.

[581] By _Laws_ (1899), 1471, 1472, on application of either
party, when the assigned cause is adultery, a jury must be
called; and in other cases it may be empaneled.

[582] MILLS, _Ann. Stat. of Col._ (1897), III, 438; _Ann. Codes
and Stat. of Wash._ (1897), II, 1600.

[583] _Rev. Stat. of Ind._ (1896), I, sec. 1038. An emergency act
of 1901 makes provision for counties of 100,000 inhabitants; that
is, for Marion county, containing Indianapolis. Where no _bona
fide_ counsel for the defendant is entered in the appearance
docket, the prosecuting attorney is to enter his name therein,
and to resist the petition on behalf of the state. Any attorney,
other than the prosecuting attorney, appearing for the defendant,
if so ordered by the court, must file a written authority
executed by the defendant: _Laws_ (1901), chap. 151, pp. 336,
337. In substance this requirement as regards the prosecuting
attorney is made general for the state by an act of 1903: _Laws_,
393, 394.

[584] MILLS, _Ann. Stat._, III, 438; _Laws_ (1893), 238, 239.

[585] _Codes and Gen. Stat._ (1892), I, 664 (act of Oct. 11,
1862); _Codes and Stat._ (1902), I, 456.

[586] _Ann. Codes and Stat._ (1897), II, 1600.

[587] This is the duty of the district attorney in Idaho, and
of the county attorney in Utah, when the ground of the petition
is the alleged insanity of the defendant: _Gen. Laws of Id._
(1895), 12; _Laws of Utah_ (1903), 39, 40; and of the prosecuting
attorney in Michigan, when there are children under fourteen
years of age whose interests require his intervention: HOWELL,
_Gen. Stat._, III, 3605; MILLER, _Comp. Laws_ (1899), III, 2665.

[588] _Cal. Stat. and Amend. to the Codes_ (1891), 279; _ibid._
(1893), 48; _ibid._ (1900-1901), 444; _Rev. Stat. of Ill._
(1898), 633, 634; _Rev. Stat. of Ind._ (1896), I, sec. 2129;
BATES, _Ann. Rev. Stat. of Ohio_ (1897), II, 3218; _Ann. Codes
and Stat. of Wash._ (1897), II, 1987, 1988; _Gen. Laws of Minn._
(1901), 286. By _Laws of N. Y._ (1902), I, 536, this offense is
made a misdemeanor. _Cf._ _Laws of Montana_ (1903), 146.

[589] _Rev. Stat._ (1896), I, 1049.

[590] Act of Feb. 11, 1897: _Pub. Acts of Mich._, 12; _ibid._
(1899), 69.