Women's Rights to Property at Divorce in Early Maryland: From Colonial to Modern Times

Summary

Under English common law, ecclesiastical courts handled divorces. No such courts existed in what would become the United States. Colonial Maryland had no statutory provisions for divorce, but the Chancellor and equity courts had the authority to decree alimony or divided property in some separation cases. Women could seek to recover female sole status and regain the separate property they owned before marriage, but they were unable to recoup any jointly owned property. Occasionally, however, women were able to assert their rights privately and persuade their husbands to share joint property. During this period, alimony and property division were intertwined.

Maryland's first legislative divorce was granted in 1790. The state legislature granted over 500 divorces within the next 60 years. Unless specifically provided for by the legislature, women had no right to dower at divorce. Sometimes the General Assembly provided for alimony in a divorce, but in an 1823 case, Crane v. Meginni, the state Court of Appeals ruled that because the legislature had bestowed the power to grant alimony upon equity courts, the legislature lacked the authority to order such payments. This decision, which left the legislature power to grant divorces and the courts power to award alimony, complicated the divorce process and made it hard for women to obtain both a divorce and alimony or property awards.

In 1841, the first law permitting equity courts to grant divorces was passed. The increase in divorces in the preceding years had created too heavy a load for the state legislature to bear. Courts awarded wives alimony or property only if the divorce was based on the husband's misconduct. The judges decided how much alimony was reasonable, which property was separately owned by wives, the value of property converted by the husband during marriage, and who would have custody of the children. The Married Woman's Property Act of 1843 protected the sole ownership by wives of all the property they owned before or acquired during marriage, and provided wives with control over some of their income during marriage. Courts seldom went beyond the dictates of the statute to divide joint property or provide alimony. On the whole, judicial divorces did not do much more for women than legislative divorces did. Women's property rights were institutionalized through the Married Women's Property Act, but women seldom received more property at divorce than they owned at their marriage.

In 1851, a prohibition against legislative divorce was written into the Maryland Constitution. Courts began to draw sharper lines between property division and alimony, ruling that alimony could only be granted when the husband had an estate from which to grant it, that it was to be paid only in regular installments of money, that it was not to come from a husband's real property, and that it need not be continued if the ex-wife remarried. Property division was intended to restore the wife to her original status as much as possible, but courts would not restore property to the wife if the husband was insolvent. Vague statutes and judicial preference for the rights of husbands both diluted women's property rights at divorce.

The 1978 Marital Property Disposition Reform Act provided for equitable division of property at divorce, taking into account both monetary and non-monetary contributions to the marriage. The 1980 Rehabilitative Alimony Act provided for the granting of temporary alimony to either spouse until that spouse became self-sufficient. Finally, the law began to view marriage as a partnership between equals.