Women's Legal Rights
in West Virginia, 1863-1984
By Donna J. Spindel
The absence of a body of solid scholarship on the history of West Virginia women makes it difficult to unravel the traditional and conflicting interpretations of West Virginia's past. Sociological studies, spawned by the interest in Appalachia in the 1960s, portray the mountain state as an underdeveloped rural region with its own unique subculture. More recent interpretive studies view the past through the narrow lens of politics and personalities, a focus which tends to exclude women. In fact, the best analyses of West Virginia history emphasize the evolution of state government, thereby omitting any kind of meaningful study of the female population of the state.1 Within the last decade, two excellent monographs specifically on the subject of West Virginia women have been published, but these works are biographical rather than interpretive.2
This study attempts to fill in some of the gaps by focusing on the law as it related to women. A relatively new area of inquiry, women's legal history examines the links between law and the society which creates it. Based on the premise that male-made and male-interpreted laws have a powerful influence on women's lives, this study looks at West Virginia statutes concerning women's property and marital rights and examines how the state's high court applied them. What legal and social status did lawmakers prescribe for West Virginia women? Did such rules operate in theory or practice? To what extent did the evolution of property law continue to subordinate women? How did the West Virginia experience compare to that of other states? The answers to these questions provide insight into West Virginia law, prevailing views of family life, and the status of married women.
As was true across the South, the law which governed the property rights of nineteenth-century Virginia women stemmed from English precedents. According to the doctrine of marital unity, once married, a woman lost most of her property rights. American law regarded husband and wife as one person; in this case, one plus one equalled one, the husband. So long as a woman was married, the law virtually ignored her existence. While a femme covert (married woman) could retain any real property she held before marriage, her husband could manage it and keep the rents and profits. He also controlled her earnings and those of her children. Although the law granted her dower (a widow's share in the real property held by her husband during marriage) she had to survive her husband to claim it. She could not contract, sue or be sued. Common law combined marital assets and placed them under the husband's control, a practice which, in theory, stemmed from the assumed obligation of husbands to support their wives.
In the 1830s a number of state legislatures put into statute law for the first time the principle of separate estates for women.3 Although courts of equity had shielded a small number of women from some of the harsh impact of common law, these Married Women's Property acts marked the beginning of the end of common-law doctrines by which a husband automatically controlled the assets of his wife.4 Long considered a response to the efforts of women's rights' supporters, these laws did, in fact, result from a combination of developments. Recent scholarship suggests that a fluctuating economy heightened the need to protect women's property from profligate husbands.5 A codification movement led to a reexamination of common law and its blatant inequities with regard to women.6 And finally, shifting domestic roles for women and the efforts of reformers help explain the emergence of the Married Women's Property acts.7
West Virginia Unionist leaders launched their own legislative revision of femme covert disabilities in 1863. The state's first constitution empowered legislators to pass laws protecting the property of married women from the debts of their husbands. This provision of the constitution, however, was not enacted without debate. In fact, a motion to remove it, defeated by a vote of 23-14, generated discussion about property reform which reflected opposing views of West Virginia leaders. Those who challenged the provision argued that it would threaten women's traditional role. Those who supported it argued that it would, in fact, sustain that role. The purpose of the provision, one delegate noted, was to protect "the weaker class, the female portion of our country . . . who are not so well guarded against the acts and frauds of the stronger."8 Here he echoed the views of his counterparts elsewhere in the South who believed that the greatest danger to married women was evil men.9 Another lawmaker also pointed out at great length that by enacting property reform, West Virginia would only be doing what many states had already done. "The old doctrine on this subject," he noted, "at the present day -- in many states of this Union . . . has gone out of use, and this new proposition for the protection of private property of a married woman has taken its place and has proved very beneficial."10 It appears, then, that the authors of West Virginia's first constitution recognized economic realities which demanded some alleviation of married women's legal restraints, but they also had no intention of launching any kind of social revolution.
In 1868, as Republican lawmakers prepared to deal with women's property reform, they turned for guidance to the much revised statute of New York.11 Republicans would not have looked for a Virginia model in 1868 and would have failed to find one if they had. Virginia did not act to protect the property of married women until 1877. West Virginia's early effort at property reform actually fit solidly into the much larger Radical Reconstruction movement that resulted in the expansion of women's rights in nine southern states.12 As was true across the South, the West Virginia law of 1868 had nothing to do with feminism. It was written to protect women and their families, and in the process relieve the state of a potential financial burden. West Virginia's first Married Women's Property Act provided that property conveyed to a married woman be "her sole and separate property." She still could not convey her real estate unless her husband joined "in the deed or other writing by which the same is sold or conveyed."13 *A married woman was also, by law, now responsible for her debts before marriage, and she could sue and be sued under certain circumstances. If living separate from her husband, thereby needing some financial autonomy, she could "in her own name, carry on any trade or business," and keep her earnings. Four years after the passage of the 1868 legislation, the second West Virginia Constitution was ratified, this time when Republicans were no longer in control. Like the constitution which preceded it, this new plan of government also enabled legislators to "pass such laws as may be necessary to protect the property of married women from the debts, liabilities, and control of their husbands."14 Given the sequence of married women's laws which followed, West Virginia's new Democratic leadership showed the same desire as Republicans before them to protect rather than reform.
West Virginia judges also confirmed that the purpose of the Married Women's Property Act was to protect women from unworthy husbands, not to ensure their equality. In so doing, they applied the same narrow construction of the law as did their counterparts in such states as New York, Virginia, and Massachusetts.15 Consider the West Virginia Supreme Court's position in an 1883 appeal by attorney Daniel Peck, who had sued the husband of the deceased Mary Marling for debts Mrs. Marling incurred in securing a bed and board divorce (a legal separation with prohibition against either spouse remarrying). The court declared that the 1868 law removed a married woman's common-law "incapacity" to contract in business only when she was living apart from her husband. There is "no doubt," the judges observed, that "our statute was passed because the Legislature saw that a married woman, abandoned by her husband or for any reason living separate and apart from him would necessarily be compelled to support herself. . . ."16
In 1891, the Married Women's Property Act underwent some fine-tuning. The revised section protected the earnings of a married woman from "the control or disposal of her husband. . . ."17 Perhaps by oversight, lawmakers omitted the requirement that a woman live apart from her husband to engage in business legally, but in 1893 they added it.18 West Virginia's earnings statute, which remained intact until 1931, actually followed similar laws passed by other states, such as Ohio, Pennsylvania, Kentucky, and Arkansas, beginning in the 1870s.19 A few states, as did West Virginia, only protected women who were not living with their husbands. It should come as no surprise that West Virginia was late to recognize women's independent earnings. The male-centered culture which had long resisted change dictated that "women are taught to serve men and to consider themselves inferior."20 West Virginia women's employment outside the home has failed "to radically alter" this view.21
Over the years, the crucial principle of a separate estate for married women, described in the 1868 Code of West Virginia, was modified by a series of statutory changes and court rulings. Although the original statute was to ensure wives some financial protection, property reform in West Virginia, mirroring developments in many other states, failed to produce a radical change in traditional common-law views of property.22 The 1868 code failed to break completely from common-law doctrine because it allowed a married woman to own real property but, like the New York statute of 1860, prohibited her from conveying it without her husband's consent.23 In 1875, the legislature further directed that after the husband and wife both signed a deed conveying her real estate, the wife had to be "examined privily and apart from her husband" by a county clerk to protect against coercion.24 A paternalistic holdover from the colonial period, the privy examination of a wife lived on.25 In 1891, lawmakers permitted a woman to acknowledge her conveyance separately or with her husband, but he still had to sign the deed.26 As the high court noted in 1898, when a wife conveys property, "it is prudent, in the eye of the law, that she have his [the husband's] advice and concurrence. . . .27
No significant property reform for married women occurred in West Virginia until 1931. This year culminated a decade-long, first-time effort to codify the laws of the state. The codification process by its nature compelled a careful scrutiny of existing law and encouraged the elimination of inequities, ambiguities, and complicated, lengthy procedures.28 Just as codification helped to liberalize property law in nineteenth-century America, the new 1931 Code of West Virginia, approved under Republican leadership, provided for a host of liberal changes in the law regarding women, one of which abolished the consent requirement for property conveyances. There is also no question that in the midst of hard economic times, legislators responded to the urgent need for greater female financial independence. They also reacted to the passage of the suffrage amendment, the entrance of many more married women into the work force, and to the "liberating" climate of the decade of the 1920s.29 A married woman could now convey real estate without her husband's consent, putting "the wife on an equality with her husband in the ownership, control and disposition of her own property."30 As the high court pointed out in a 1935 ruling, this statute "removed all the restraints upon alienation theretofore imposed by law on a married woman."31 Such restraints, however, were not simply vestiges of common law, but also of a society "clearly patriarchal regardless of economic level."32
The 1931 code removed other impediments to a married woman's ability to engage in business. Common-law principle had always required a married woman to be joined by her husband to sue or be sued by a third person. The 1868 code partially erased this disability by permitting a married woman to sue or be sued when living apart from her husband, when the action concerned her separate estate, or when it was between herself and her husband.33 In 1893, the legislature expanded a wife's right to sue by enabling her to do so "the same in all cases as if she were a femme sole."34 Annie Normile's experience in 1905 led to the first high court application of this statute.35 Although she alone was injured in a railroad accident, Normile and her husband together sued the railroad. Citing common-law principle which required a woman to recover damages for personal injury by suing with her husband, the court noted that, "this common law rule has, in a large measure, been abrogated by the various Married Women's Acts." In West Virginia, a "wife may or may not, at her election," sue with her husband. Finally, the 1931 code declared that a married woman could sue as if she were a "single woman," rather than, as the law had previously stated, a "femme sole."36 Her husband could not "be joined with her in any case unless for reasons other than the marital relation." The 1931 code also removed the common-law prohibition against contracts between husband wife.37
Until the early twentieth century, inheritance law in West Virginia prescribed a dependent status for widows. Their future was tied to the right of dower, a woman's life estate in one-third of her husband's real property. As a widow, she could not convey the property by sale or through her will, but could enjoy its rents and profits. At her death, her estate in dower reverted to her husband's heirs. While dower was supposed to protect a widow, it offered no foolproof guarantee. Dower rights only benefitted women when their husband's wealth was in land. A husband could sell his real estate without his wife's consent, although the sale of property did not erase a wife's one-third interest and she could try to claim it years after the sale had occurred.38 But there is no mistaking the rhetorical importance of dower in West Virginia. In an 1869 case, the high court likened dower to "the widow's last plank in her shipwreck . . . given by the common law . . . for the sustenance of herself and the education of her children."39 The code of 1868 put the dower right into statute law as well as the husband's parallel common-law right of curtesy.40 By definition, curtesy was a husband's right to all or part of his dead wife's real property.41 A widower became a "tenant by the curtesy" in his wife's estate. At his death, the children inherited the property, or in their absence, his wife's heirs. While the 1868 statute set the husband's curtesy at one-third of his wife's estate, a law of 1872, enacted by a more conservative legislature, brought West Virginia back to an earlier time when a husband was entitled to be a tenant by the curtesy in all of his wife's estate.42 Potentially, a widower could maintain his standard of living while a widow could not. This statute remained in force essentially until 1931, when the relatively liberal 1931 code abolished curtesy and decreed that, "a surviving spouse shall be endowed of one-third of all the real estate" of the deceased spouse.43
Given the conservative, fundamentalist quality of Appalachian culture and the strength of family relationships, divorce has been less common in West Virginia than elsewhere. According to one recent study, "mountain people do not look kindly on divorce," a legal area that has traditionally provoked much debate.44 Domestic relations scholar Joel P. Bishop noted in 1852 that, "there is no question upon which a greater diversity of sentiment has prevailed in different ages . . . than whether and for what causes, a marriage originally valid, may property be dissolved."45 Throughout the colonial period, divorces were rare, in part because of the prevailing view that marriage, except in extreme circumstances, should be preserved, and partly because the death of one spouse often ended marriages early. In England, ecclesiastical courts granted partial divorces and, much less often, Parliament granted absolute divorces only on the grounds of adultery.46 Without a common-law tradition by which civil courts granted divorces, state legislatures did so in the nineteenth century until they gave the civil courts statutory authority. For women, the most important change in nineteenth-century divorce law was that it afforded them greater legal control of their lives.47
There is a clear legislative and judicial history of divorce in the mountain state which is consistent with traditional attitudes resistant to change. This history also sheds some light on how state leaders viewed women's property rights. West Virginia enacted its first divorce statute in 1867, modeled in part on a Virginia law of 1849 as revised in 1853.48 The West Virginia statute was brief, addressing exclusively grounds for an absolute divorce. These included two very common grounds for divorce in other states -- adultery and willful desertion for more than three years -- plus impotency, confinement to prison, and sexual conduct having the potential to undermine family life.49 Until 1935, the West Virginia statute on absolute divorce omitted a basis that appeared in the laws of other states from an early time, cruelty.50 This particular basis for divorce had become available to West Virginia couples in 1868, but only for those seeking a mensa et thoro divorce (separation from bed and board with a prohibition against remarriage by either spouse).51 The statute of 1868 made it possible to secure a divorce from bed and board on the grounds of "cruel and inhuman treatment, reasonable apprehension of bodily hurt, abandonment, or desertion." Before 1931, the legislature revised the divorce statute, but made few substantial changes.52 The 1931 code, perhaps in an effort to simplify divorce law, restricted absolute divorce to adultery, conviction of either spouse of a felony, or desertion for three years.53 This marked the first significant change in absolute divorce law since 1867. More radical revision came in 1935, apparently in response to pressure from the legal profession and to the liberal changes in the Married Women's Property Act placed in the 1931 code. The new female electorate, the post-World War I marriage crisis, and the fact that it was far more difficult to obtain an absolute divorce in West Virginia than in many other states may have also influenced the legislature. Support for the 1935 bill was overwhelming. Lawmakers repealed the statute providing for bed and board divorces, allowing West Virginia to join most other states which had already abolished them, and made the grounds for absolute divorce significantly more liberal.54
Efforts to bring about divorce reform in the state were again undertaken in the 1960s, in the wake of national divorce reform. The new statute of 1969, which reflected laws already in place in other states, established a reasonable apprehension of bodily harm as grounds for divorce as well as the "false accusation of adultery or homosexuality by either party." For the first time also, voluntarily living apart for two years was an acceptable basis for divorce.55 The mountain state's final, dramatic revision of West Virginia divorce law came in 1977, influenced by California's no-fault divorce law of 1970.56 With the 1977 statute, West Virginia finally joined most other states in breaking away from the traditional attitude that fault must be established to end a marriage.
The social and cultural change which led to much earlier divorce reform in other states clearly came late to West Virginia. This explains, in part, why absolute divorce was relatively difficult to obtain in the mountain state. Given their continuing legal disabilities and financial dependence on men, married women in particular suffered from this policy. Until 1935, a limited divorce was a much more likely alternative than actually ending a marriage for those seeking a separation. As the theory went, divorces a mensa et thoro, by preventing remarriage, at least preserved the family. Since cruelty, a basis for absolute divorce in many states, was grounds for only a limited divorce in West Virginia until 1935, the legal definition of cruelty became especially important in divorce proceedings.57 For some married women, proof of cruelty might have been the only route to a legal separation. Because the 1868 statute offered no precise definition of cruelty, except that it included a false charge of prostitution by a husband against a wife, the courts were left with the task of defining the term themselves.
Traditionally, cruelty meant physical violence. As Joel Bishop noted in 1852, cruelty was conduct "attended with bodily harm."58 If a woman's life or limb was threatened by her husband, then the courts would recognize the need for separation.59 West Virginia justices at a relatively early time, as judges in many other states, shaped a flexible definition of cruelty which encompassed not just physical but also mental abuse.60 Yet the outcome of every appeal hinged on a traditional, conservative view of women's place in society and within the marital relationship. In Goff v. Goff (1906), Louise Goff had secured a bed and board divorce from her husband Charles because of cruelty and inhuman treatment. In Charles Goff's appeal, testimony showed there had been no physical abuse. Rather, after the marriage occurred, Charles began sharing a bedroom with a male guest in their house and generally behaved rudely towards his wife. In upholding the lower court ruling, the West Virginia high court posed the question, "what is cruelty?" and in its response established an early definition: "The conduct of one of the parties must at least be such as to render cohabitation intolerable to the other . . . there must have been such treatment as to destroy the peace of mind and happiness of the injured party as to endanger the health or utterly to defeat the legitimate objects of marriage." Here the court devised for the first time the principle of "mental cruelty" as grounds for a limited divorce. "What woman's nerves," the court asked, "could stand" the abuse suffered by Louise Goff? "The test" was whether or not "the mental suffering of the wife, [was] impairing her health, and threatening her life."61
In 1911, Supreme Court justices refined the Goff ruling. Maxwell v. Maxwell marked the first time the court considered whether or not it was cruelty for one spouse to accuse falsely the other of immorality or a crime. Emma Maxwell was appealing a lower court's denial of a bed and board divorce on the grounds of cruel and inhuman treatment. The marriage had been a second one for both partners and disagreements surfaced almost from the start. How the court regarded A. O. Maxwell's behavior in this case hinged largely on what the court called "acts unbecoming a wife." While he had accused her without evidence of having a criminal abortion, court testimony also showed that Emma did not subscribe to the general social mores of her day. Maxwell lost her appeal in part because, in a court of equity for divorce, the plaintiff must "come with clean hands." But she had also failed to show that her husband's false charges damaged her mental condition or health. "The test," said the court, "is the mental suffering of the wife," and Emma Maxwell had shown none. At no time did the high court express more clearly the traditional view that "a woman had to show her own essential virtue in the face of provocation."62
Judicial recognition of a double standard in the marital relationship was reflected once again in a 1922 appeal. Court records show that Homer Roush had been granted a divorce from bed and board because his wife Rosa had falsely accused him of adultery. In responding favorably to Rosa's appeal, the high court asserted that "a charge of adultery against the wife ordinarily is much graver than the same charge against the husband. . . ." A false charge of adultery by a wife against a husband "would affect different men differently." In this case, Homer Roush failed to show that his wife's false accusation harmed him.63
In 1929, the West Virginia high court again overturned a lower court ruling on the basis of orthodox views that mandated special treatment for women. When a circuit court dismissed her divorce suit, Sadie White, who had testified to a long history of marital abuse, appealed. After her first child was born, she said her husband accused her of committing adultery with her physician. At other times, White threatened her with a razor, said he would "finish her with a butcher knife . . . and threw hot water on her. . . ."64 What caught the judges' attention in this case was not the physical abuse, but the attack on the female guardian "of traditional moral rules."65 To their minds, challenging the morality of a moral woman was the real crime. "It is difficult to conceive of greater cruelty," the court observed, "that could be inflicted upon the mind of a virtuous woman than" the false charge of adultery. "The mental anguish" would produce more pain than would result from personal injuries or physical blows. Cruelty once again touched substantially on the appropriate feminine character of the victim. Said Judge Haymond Maxwell in the divorce appeal of Arnold v. Arnold (1932), "observation teaches us that a fixed and constant attitude and course of conduct sapping and undermining the mental and physical organisms of a sensitive and refined woman may be more cruel than intermittent blows." No statement better links the views of twentieth-century judges to the antebellum judicial concern for the "ladies."66
Although the West Virginia high court modified the definition of cruelty, until 1935, cruelty and inhuman treatment were a basis solely for a bed and board divorce. In the nineteenth century, the more restrictive definition made it more difficult to secure a divorce on these grounds.67 Moreover, when in 1935 it became possible to secure absolute divorces on the basis of cruelty, the data suggest that the courts were not quick to grant them. In 1948, more than one-half of all divorces nationally were granted for cruelty, while the proportion in West Virginia was a little over one-third.68 In recent years, lawmakers have continued to mold a definition of cruelty, giving justices more flexibility in divorce rulings. These contemporary statutes have diminished the presence of a double standard in divorce proceedings and have established clear grounds for mental and physical cruelty.69
As late as 1968, West Virginia was still one of five states lacking a central divorce file and since national divorce statistics were not collected on a regular basis until the 1920s, statistical comparisons of state divorce records are difficult.70 Certainly the West Virginia story of an increase in the number of divorces granted in the last part of the nineteenth century parallels a national trend. The growth of cities, where divorce rates tend to be higher, and the increasing opportunities for female financial independence help explain the change.71 Without distinguishing between limited and absolute divorces, a national survey showed that West Virginia granted 72 divorces in 1867, a number which steadily increased each year until the final year of the survey, 1886, when the courts granted 217 divorces.72 During the 1920s, a period of severe labor unrest in the state, the number of divorces grew dramatically. Desertion was grounds in a majority of these cases, perhaps because the courts saw clearly that absent husbands were failing their family obligations.73 A 1948 survey still placed West Virginia ten points above the national percentage of divorces granted for desertion. More significantly at this time, West Virginia had the second highest percentage of divorces in the nation granted for drunkenness.74 This fact may reflect the religious underpinning of Appalachian culture and its aversion to alcohol.75
If West Virginia judges and lawmakers responded slowly to national changes in the application of cruelty to divorce suits, they also delayed in addressing a crucial economic issue of divorce, alimony. The Married Women's Property Act of 1868 gave the courts authority to "make such further decree [following divorce] . . . concerning the estate and maintenance of the parties. . . ."76 Until 1933, West Virginia courts had no other guidance as to how alimony should be determined. Court rulings consistently followed tradition in defining alimony as the "allowance which a husband pays, by order of court, to his wife who is living separate from him, for her maintenance."77 As recently as 1959, the high court affirmed that "the duty of the husband to support his wife is basic in the law of this State."78
Although given the statutory authority to make alimony awards, West Virginia courts, much like many other jurisdictions, narrowly interpreted the law.79 Over the years they have held tenaciously to the inviolability of titled property. As a result, they did not figure into marital assets any property titled to either spouse, a practice which invariably benefitted men. Time and again, the high court put itself in the contradictory position of stressing the legal obligation of a husband to support his wife, while at the same time making it relatively easy for him to avoid that obligation.80 The Supreme Court noted in a 1904 appeal, "the law presumes that the husband supports the family since he is under legal duty to do so."81 Emma Reynold's circumstances in 1910, however, underscored the disparity between judicial statements and the application of the law. In that year the high court reversed a circuit court ruling that part of her husband's interest in a city lot be included in her alimony award. Alimony, declared the court, "had its origins in the legal obligation of the husband . . . to maintain his wife in a manner suited to his means and social position." At the same time, the court record went on, West Virginia differed from other states around the country in that its courts had no statutory authority to assign a husband's titled property to his wife as part of alimony. Rather, alimony had to be based on the husband's income.82
Before the 1930s, lawmakers appeared to accept a narrow construction of the state's alimony statute as demonstrated by Margaret Burdette's 1930 appeal of an alimony award decreed by a Cabell County court in 1928.83 After nearly fifteen years of marriage, she had asked for "an undivided interest" in her husband's property, "on the theory that by performing her duties as a wife and housekeeper she contributed to accumulation of money which went into the property, the legal title to which is held by the husband." Mrs. Burdette's lawyer had argued unsuccessfully, "that marriage should be considered as a partnership, the spouses being equal partners. . . ." Once again the high court held firmly to the precise wording of the original statute, finding that the law did not "authorize the transfer of legal title to the land by way of alimony." Lawmakers responded to Burdette's case in 1931. The 1931 code, among its host of positive legal changes affecting married women, empowered courts to disregard title when distributing marital assets at divorce.84 Yet this statute, with its enormous potential for improving the lives of divorced women, escaped the notice of the high court. Year after year, the justices ignored it, despite the fact that the reviser's notes in the 1931 code explained that the purpose of the law was to clarify the authority of the court to distribute "the estate of the parties" at divorce.85
Judicial conservatism in the face of legislative attempts to secure some financial independence for divorced women continued to keep them in a dependent status. The 1943 appeal of Hazel Wood, married to Newton for twenty years, exemplifies this condition.86 The high court rejected Hazel's claim to a larger share of the marital property. Her situation, the judges declared, was an "ordinary case of property accumulated during matrimony by the concurring labor, management and savings of both husband and wife," which does not amount to any form of joint ownership. When such property is held in the name of one spouse, "the law presumes, in the absence of an agreement to the contrary, that the contribution of the other thereto was a gift." As recently as 1958, a celebrated divorce appeal also underscored one of the long-standing fallacies in an alimony law that was ostensibly designed to ensure the equitable distribution of assets at divorce.87 Woodrow Wilson Cecil had divorced Bessie Cecil on the grounds of her cruel and inhuman treatment of him. He now appealed Bessie's alimony award, arguing that alimony was a right that could be forfeited by a wife's misbehavior. The high court agreed, declaring that "permanent alimony is to provide support for the wife and . . . is based upon the common-law right of the wife to support by the husband which continues until forfeited by the misconduct of the wife. . . ." If a wife's misconduct was the grounds for a divorce, she could be denied alimony. Such was the case in West Virginia until 1984.88
In 1969, West Virginia lawmakers enacted a major change in alimony law, but one that failed to touch directly on the inequitable distribution of marital property. Alimony was now redefined as "support or maintenance to be paid by a spouse," rather than by a husband to his wife.89 The revision suggests that West Virginia was responding to the women's reform movement, the new climate for women's rights, and to divorce reform in other states. The 1974 case Corbin v. Corbin strongly supports this contention. This appeal of a lower court alimony decree was based on constant litigation between Laetitia and Howard Corbin, who were divorced in 1963. Justice Richard Neely affirmed the original decree, an annual payment of twenty-one thousand dollars, based on the wife's previous earning potential, the presence of a child, and the husband's discretionary income. The high court's finding, which secured a better financial status for the divorced wife, ironically was grounded in traditional views, but also in the recognition that many West Virginia women still filled a conventional domestic role. Neely wrote "although the norms of society are rapidly changing with regard to the role of women in the labor force . . . the fact remains that a majority of women in West Virginia . . . elect to pursue careers as wives and mothers. . . ." The trial court "is entitled to take into consideration, in awarding alimony . . . the degree to which she [the wife] has relied to her detriment in choosing to be a housewife and mother rather than to pursue her own independent course."90
A similarly paternalistic view underlay the 1983 case LaRue v. LaRue, a real benchmark in West Virginia alimony law.91 So crucial was this appeal that appellant Betty LaRue was joined by the New York branch of the National Organization for Women Legal and Education Fund and the National Center on Women and Family Law. In 1980, a circuit court in the LaRue divorce proceeding ending thirty years of marriage had denied LaRue's petition that she receive one-half of all real estate titled in her husband's name. She was now asking the high court "to recognize the doctrine of equitable distribution of marital property." Testimony showed that Betty LaRue had been a housewife and homemaker, had raised two sons, "and entertained her husband's business associates." Justice Thomas Miller pointed out that by this time, "the concept of equitable distribution of marital property has achieved an almost universal acceptance in the divorce laws of the various states." The time had now come for the court to interpret existing statute law more precisely and to permit "a spouse, who has made material economic contribution toward acquisition of property which is titled in the name . . . of the other spouse, to claim an equitable interest in such property. . . ." In his concurring opinion, Justice Neely looked at Betty LaRue's finances at divorce and reached the simple conclusion that "women are poorer than men." He tied Betty's "financial ruin" to the placement of family assets in Walter LaRue's name. It was this uniquely female tragedy the high court finally addressed in LaRue v. LaRue, and by doing so closed "this ghastly chasm in our legal landscape." The importance of this decision can be measured best by the speed with which lawmakers reacted to it. In 1984 they put the LaRue decision into statute law, making West Virginia the last of the common-law states to provide for some form of equitable distribution of property at divorce.92 Without question, the LaRue decision potentially offered divorced women a degree of financial stability unavailable to them in the past. Ironically, it was born of the recognition that many West Virginia women held a dependent status and thereby needed marital protection.
The development of West Virginia law as it related to women reflects both the conservative and ambiguous views of lawmakers and judges. Keeping in mind that the issue of women's legal rights was never a high priority among West Virginia leaders, as it was not among leaders in any other state, the mountain state responded slowly to change. The age-old adage that laws may change but cannot by themselves reverse traditional domestic customs surely applies to the West Virginia experience. Scarcely a state in 1868, West Virginia passed a Married Women's Property Act which enabled a married woman for the first time to have a separate estate and to engage in business if living separate from her husband. Yet as was true elsewhere, this measure was meant to protect women from dissolute men, not grant them equal rights. Moreover, the high court time and again conservatively ruled to undermine that protection. Placed on a pedestal by the law and the courts, women were left to flounder there. Women's dower rights became law in 1868, for example, but widows could only benefit if their husband's estate was in real property. Judges on the one hand highly valued a "virtuous" woman, but until 1984, attached no financial value at all to a wife's homemaking contributions. This particular practice hit West Virginia women hard since a relatively large proportion of them traditionally worked inside the home.
Repeatedly the records show a gulf between legal rhetoric and reality. To the extent that rhetoric actually reflects social reality, that rhetoric rather than the law best reflected women's place. In many instances the law held out the possibility for greater female equality, but judges took it away. Nowhere is this more apparent than in the distribution of titled property at divorce. Since 1931 the law gave the courts authority to disregard title when dividing property at divorce, but the high court consistently ignored the statute. Lacking control over property, women had little power in their lives. There is no question that West Virginia justices, on the whole, held tenaciously to traditional values. Despite the positive changes afforded the female population by the 1931 code, women continued to be plagued by legal disabilities. Lawmakers proved equally conservative to their judicial counterparts. In such crucial areas to women as divorce and alimony, the West Virginia legislature followed in delayed reaction the efforts of legislatures in other states to make the laws more equitable. Given the history of the state, this comes as no surprise. Isolated by geography in its early years, and hindered in its development by a rural culture, West Virginia has been slow to follow paths taken by other states. In the twentieth century, traditional beliefs and behavior have resisted a world of drastic change. A culture which has taught women "to serve men and to consider themselves somewhat inferior," and which put great emphasis on family, prescribed a role for women that reinforced dependence.93 The tenacity of Protestant fundamentalism, with its emphasis on female subservience, helped sustain the legal disabilities of women. These powerful cultural norms clearly influenced and were reflected in the actions of judges and lawmakers. Only in the last twenty years have West Virginia women begun to gain full equality under the law.
1. For a similar argument see Barbara Melosh, "Recovery and Revision: Women's History and West Virginia," West Virginia History 49(1990): 3- 6. Recent studies which have little to say about West Virginia women include Otis K. Rice, West Virginia: A History (Lexington: Univ. Press of Kentucky, 1985), and John Alexander Williams, West Virginia: A Bicentennial History (New York: W. W. Norton, 1976).
2. See West Virginia Women's Commission, ed., Missing Chapters: West Virginia Women in History (Charleston: West Virginia Women's Commission, 1983); Frances Hensley, ed., Missing Chapters II: West Virginia Women in History (Charleston: West Virginia Women's Commission, 1986).
3. For some of the reasons behind the marital property law reform see Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca: Cornell Univ. Press, 1982), 114, and Richard A. Chused, "Married Women's Property Law: 1800-1850," Georgetown Law Journal 71(1983): 1425.
4. See Mary R. Beard, Women as a Force in History (New York: Collier Books, 1946), 70.
5. Basch, In the Eyes of the Law, 114.
6. Elizabeth Bowless Warbasse, "The Changing Legal Rights of Married Women 1800-1861' (Ph.D. diss., Radcliffe College, 1960), 63-72.
7. Chused, "Married Women's Property Law," 1461.
8. Charles H. Ambler, ed., Debates and Proceedings on the First Constitutional Convention of West Virginia, 1861-1863 (Huntington: Gentry Brothers, 1939), 2:55.
9. See Suzanne D. Lebsock, "Radical Reconstruction and the Property Rights of Southern Women," Journal of Southern History 43(May 1977): 198.
10. Ambler, ed., Debates, 2:52. By 1861, nearly all states had moved in some way to protect the property of married women. See Warbasse, "Changing Legal Rights of Married Women," 278-79.
11. Code of West Virginia, 1868, c. 66, s. 1-13. The original New York statute was passed in 1848. See Warbasse, "Changing Legal Rights of Married Women," 167, 205-29, 279, 283, 306.
12. Lebsock, "Radical Reconstruction," 195-216.
13. This was also true in many other states. For example, see Kathleen E. Lazarou, "Concealed Under Petticoats: Married Women's Property and the Law of Texas 1840-1913" (Ph.D. diss., Rice University, 1980), 35.
14. West Virginia Constitution, art. 6, s. 49.
15. See Basch, In the Eyes of the Law, 200-02; Chused, "Married Women's Property Law," 1425; Albie Sachs and Joan Hoff Wilson, Sexism and the Law: A Study of Male Beliefs and Legal Bias in Britain and the United States (New York: Oxford Univ. Press, 1978), 78.
16. Peck v. Marling, 22 W. Va. 708 (1883).
17. Code of West Virginia, 1891, c. 109, s. 14.
18. West Virginia, Acts of the Legislature, 1893, c. 13, s. 14.
19. Code of West Virginia, 1931 (48-3-17), current code. On earnings acts in other states see Chused, "Married Women's Property Law," 1424.
20. Harvey L. Gochros, "Sex and Marriage in Rural Appalachia," in Appalachia: Its People, Heritage, and Problems, ed. by Frank S. Riddel (Dubuque: Kendall/Hunt, 1974), 77.
21. George L. Hicks, "Kinship and Sex Roles," in Appalachia: Social Context Past and Present, ed. by Bruce Ergood and Bruce E. Kuhre (Dubuque: Kendall/Hunt, 1976), 218.
22. Gerald Allen Kinchy, "LaRue v. LaRue: Equitable Distribution of Marital Assets Finally Available in West Virginia," West Virginia University Law Review 86(Fall 1983): 251, hereinafter cited as WVLR. See also Basch, In the Eyes of the Law, 9.
23. Basch, In the Eyes of the Law, 234.
24. West Virginia, Acts of the Legislature, 1875, c. 67, s. 4.
25. Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: Univ. of North Carolina Press, 1986), 7, and Richard B. Morris, Studies in the History of American Law (1958; reprint, New York: Octagon, 1964), 149.
26. West Virginia, Acts of the Legislature, 1891, c. 23, s. 4.
27. Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216 (1898).
28. See Lawrence Friedman, A History of American Law, 2nd ed. (New York: Simon and Schuster, 1985), 407; Basch, In the Eyes of the Law, 127.
29. William H. Chafe, The American Woman: Her Changing Social, Economic, and Political Roles, 1920-1970 (New York: Oxford Univ. Press, 1972), ch. 2.
30. Code of West Virginia, 1931 (48-3-2), current code.
31. Hanley v. Richards, 116 W. Va. 127, 178 S. E. 805 (1935).
32. Gochros, "Sex and Marriage in Rural Appalachia," 77. See also John C. Campbell, The Southern Highlander and His Homeland (1921; reprint, Lexington: Univ. Press of Kentucky, 1969), 124, and Ronald D Eller, Miners, Millhands, and Mountaineers: Industrialization of the Appalachian South, 1800-1930 (Knoxville: Univ. of Tennessee Press, 1982), 31.
33. Code of West Virginia, 1868, c. 66, s. 12.
34. Acts, 1893, c. 13.
35. Normile v. Wheeling Traction Co., 57 W. Va. 132, 49 S. E. 1030 (1905).
36. Code of West Virginia, 1931 (48-3-19), current code. By using the term "single woman" rather than "femme sole," the legislature signaled its intention to erase old common-law principles as well as terminology.
37. Ibid., (48-3-8).
38. Salmon, Women and the Law of Property, 16.
39. Engle v. Engle, 3 W. Va. 246 (1869).
40. Code of West Virginia, 1868, c. 65, s. 1 and 15.
41. Salmon, Women and the Law of Property, 144-45.
42. West Virginia, Acts of the Legislature, 1872, c. 207, s. 15.
43. In 1921, lawmakers limited the husband's right to a life estate in his wife's property to the same one-third interest as the wife had in his, West Virginia, Acts of the Legislature, 1921, c. 207, s. 15.
44. Gochros, "Sex and Marriage in Rural Appalachia," 80.
45. Joel Prentiss Bishop, Commentaries on the Laws of Marriage and Divorce (Boston: Little, Brown and Co., 1852), 207.
46. Warbasse, "Changing Legal Rights of Married Women," 24.
47. See Nancy Woloch, Women and the American Experience (New York: A. A. Knopf, 1984), 86.
48. West Virginia, Acts of the Legislature, 1867, c. 17, s. 6.
49. See Carrol D. Wright, A Report on Marriage and Divorce in the United States, 1867 to 1886, Including an Appendix Relating to Marriage and Divorce in Certain Countries in Europe (Washington, DC: GPO, 1889).
50. See Friedman, A History of American Law, 499-501. In the 1880s, West Virginia was already one of only a very few states for which cruelty was not grounds for absolute divorce. See Mary Somerville Jones, "An Historical Geography of Changing Divorce Law in the United States" (Ph.D. diss., University of North Carolina, 1978), 219.
51. Code of West Virginia, 1931, c. 48.
52. In 1882, for example, lawmakers added drunkenness as grounds for a limited divorce, also a basis in eight other states and most likely a response to West Virginia's religious climate. In 1923, the state code left the grounds for an absolute divorce untouched, but extended once again the legal basis for a divorce from bed and board by adding the same grounds as for an absolute divorce plus habitual use of narcotics. See Wright, A Report on Marriage and Divorce in the United States, 116; West Virginia, Acts of the Legislature, 1882, c. 60, s. 6; Barnes' West Virginia Code, 1923, c. 64.
53. Code of West Virginia, 1931, c. 48.
54. In 1934, the West Virginia Bar Association recommended abolishing bed and board divorces. See Houston A. Smith, "The Revised Divorce Law of West Virginia," WVLR 41(June 1935): 406. Only three other states had fewer grounds for absolute divorce. See Chester O. Vernier, American Family Laws: A Comparative Study of the Family Law of the Forty-eight American States, Alaska, the District of Columbia, and Hawaii (to Jan. 1, 1931), 5 vols. (1932; reprint, Westport, CT: Greenwood Press, 1971), 2: 3-4. West Virginia, Acts of the Legislature, 1935, c. 35. West Virginia and the District of Columbia were the only two jurisdictions before 1935 which still did not allow cruelty as grounds for an absolute divorce. See Jones, "Historical Geography of Changing Divorce Law," 105. The new statute of 1935 reduced the period of desertion as grounds from three years to two, preserved adultery and felony conviction as grounds, and added a few of the former bases for limited divorces: cruel treatment (including a false charge of prostitution by a husband against a wife), habitual drunkenness, and drug addiction.
55. West Virginia, Acts of the Legislature, 1969, c. 49. See also Jones, "Historical Geography of Changing Divorce Law," 143-51. Earlier in 1957, the legislature had moved toward a more liberal law. See Acts of the Legislature, 1957, c. 56, s. 4 and William O. Morris, The Law of Domestic Relations in West Virginia (Charlottesville: Michie Co., 1973), 112-13.
56. West Virginia, Acts of the Legislature, 1977, c. 84, s. 10; Code of West Virginia, 1931 (48-2-4), current code. The fixed period for living apart and for desertion was reduced to one year. The abuse or neglect of a child, supported by "clear and convincing evidence," now became grounds for divorce. So did irreconcilable differences, signalling the most significant change in divorce law since the original statute of 1867.
57. In 1935, West Virginia was one of six or seven states which did not recognize cruelty as grounds for absolute divorce. See Vernier, American Family Laws, 2:24.
58. Bishop, Commentaries, 362.
59. Salmon, Women and the Law of Property, 77.
60. See Clyde S. Colson, "West Virginia Divorce Law," WVLR 43(June 1937): 299. On liberal judicial interpretations of cruelty in other states see Steven Mintz and Susan Kellogg, Domestic Revolutions: A Social History of American Family Life (New York: Free Press, 1988), 127.
61. Goff v. Goff, 60 W. Va. 9, 53 S. E. 769 (1906).
62. Maxwell v. Maxwell, 69 W. Va. 414, 71 S. E. 571 (1911). Jane Turner Censer, "`Smiling Through Her Tears': Ante-Bellum Southern Women and Divorce," American Journal of Legal History 25(January 1981): 40.
63. Roush v. Roush, 90 W. Va. 491, 111 S. E. 334 (1922).
64. White v. White, 106 W. Va. 680, 146 S. E. 720 (1929).
65. Hicks, "Kinship and Sex Roles," 215.
66. Arnold v. Arnold, 112 W. Va. 481, 164 S. E. 850 (1932). The same distinction between mental and physical abuse also appears in an Alabama case. See Censer, "`Smiling Through Her Tears'," 33-36.
67. Between 1867 and 1886, 2.6 percent of divorces were granted for cruelty. See Wright, A Report on Marriage and Divorce, 169-70.
68. Paul B. Jacobson, American Marriage and Divorce (New York: Rinehart, 1959), 123.
69. A 1957 statute defined cruel and inhuman treatment as behavior that can "destroy or tend to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable. . . ." West Virginia, Acts, 1957, c. 56, s. 4.Twelve years later lawmakers put to rest all questions about the necessity for violence to constitute cruelty. Now, "under no circumstances whatever shall it be necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment." Acts, 1969, c. 49; Code of West Virginia, 1931 (48-2-4), current code.
70. Hugh Carter and Paul C. Glick, Marriage and Divorce: A Social and Economic Study (Cambridge: Harvard Univ. Press, 1970), 4, 387.
71. Ibid., 55; Carl N. Degler, At Odds: Women and the Family in America from the Revolution to the Present (New York: Oxford Univ. Press, 1980), 172-73; Wright, A Report on Marriage and Divorce in the United States, 157.
72. Jones, "Historical Geography of Changing Divorce Law," 37-38.
73. Ibid., 73, 92-93.
74. Jacobson, American Marriage and Divorce, 123. The national proportion of divorces granted for desertion was 17.8 and for West Virginia, 27.9. The national proportion of divorces granted for drunkenness was 2.9 and for West Virginia, 18.1.
75.Gochros, "Sex and Marriage in Rural Appalachia," 79.
76. Code of West Virginia, 1868, c. 64, s. 11.
77. Bishop, Commentaries, 437-38.
78. Re: Estate of Nicholas, 144 W. Va. 116 ,107 S. E. 2nd 53 (1959).
79. Mintz and Kellogg, Domestic Revolutions, 127-28.
80. See Kinchy, "LaRue v. LaRue," 251. Over the years, beginning in 1910, the Supreme Court did not distribute titled property at divorce except in rare cases of unusual circumstances. See for example, Tuning v. Tuning, 90 W. Va. 457 (1922); Philips v. Philips, 106 W. Va. 105 (1928); Selvy v. Selvy, 115 W. Va. 338 (1934); State ex rel. Hammond v. Worrell, 144 W. Va. 83 (1958); Collins v. Muntzing, 121 W. Va. 843 (1967).
81. Anderson v. Davis and Ould, 55 W. Va. 429, 47 S. E. 157 (1904).
82. Reynolds v. Reynolds, 68 W. Va. 15, 69 S. E. 381 (1910).
83. Burdette v. Burdette, 109 W. Va. 95, 153 S. E. 150 (1930).
84. The new statute provided that "the court shall have power to award to either of the parties whatever of his or her property, real or personal, may be in the possession or under control, conveyance thereof as in other cases of chancery." Code of West Virginia, 1931 (48-2-20), current code.
85. Kinchy, "LaRue v. LaRue," 258, and Code of West Virginia, 1931, 48-2-20 (Reviser's Note).
86. Wood v. Wood, 126 W. Va. 189, 28 S. E. 2nd 423 (1943).
87. Cecil v. Knapp, 143 W. Va. 896, 105 S. E. 2nd 569 (1958).
88. Acts of the Legislature, 1984, c. 60; Code of West Virginia, 1931 (48-2-15), current code.
89. Acts, 1969, c. 49; Code of West Virginia, 1931 (48-2-16), current code.
90. Corbin v. Corbin, 157 W. Va. 967, 206 S. E. 2nd 898 (1974).
91. LaRue v. LaRue, 304 S. E. 2nd 312 (1983). See Kinchy, "LaRue v. LaRue," 254.
92. Code of West Virginia, 1931 (48-2-1), current code.
93. Gochros, "Sex and Marriage in Rural Appalachia," 77. See also Campbell, The Southern Highlander, 124, and Eller, Miners, Millhands, and Mountaineers, 31.
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