An act concerning divorces:
Revision Approved March 27, 1874.
I. Jurisdiction of the court of chancery.
1. That the court of chancery shall have jurisdiction of all causes of divorce and of alimony or maintenance, by this act directed and allowed, provided the parties, complainant and defendant, or either of them, were or shall be inhabitants of this state at the time of the injury, desertion or neglect complained of, or where the marriage shall have been solemnized or taken place within this state, and the complainant shall have been an actual resident in this state at the time of the injury, desertion or neglect complained of and at the time of exhibiting the bill; or where the adultery is committed in this state, and the parties, complainant and defendant, or either of them, reside in this state at the time of exhibiting the bill; or where the complainant or defendant shall be a resident of this state at the time of filing the bill of complaint, and the complainant or defendant shall have been a resident of this state for the term of three years, during which such desertion shall have continued; provided, each complainant shall make his or her oath or affirmation; to be annexed to the bill of complaint, that his or her complaint is not made by any collusion between him or her and the defendant, for the purpose of dissolving their marriage, but in truth and good faith for the causes set forth in the bill of complaint.
II. Causes for divorce.
2. Divorces from the bond of matrimony, shall be decreed where either of the parties had another wife or husband living at the time of such second or other marriage; and that all marriages, where either of the parties shall have a former husband or wife living at the time of such marriage, shall be invalid from the beginning and absolutely void, and the issue thereof shall be deemed to be illegitimate, and subject to all the legal disabilities of such issue.
3. Divorces from the bond of matrimony may be decreed, in case the parties are within the degrees prohibited by law, and in case of adultery (b) in either of the parties; and also for willful, continued and obstinate desertion for the term of three years; but the decree or sentence of divorce in such cases shall not render illegitimate the issue of any marriage so dissolved.
4. Divorces from the bond of matrimony may be decreed in case the parties, or either of them, were, at the time of such marriage, physically and incurably impotent; and all marriages in such case shall be invalid from the beginning and absolutely void.
5. For extreme cruelty in either of the parties, the court of chancery may decree a divorce from the bed and board forever thereafter, or for a limited time, as shall seem just and reasonable.
III. Procedure and practice.
6. The like process and course of practice and procedure shall be had and pursued in all such causes as are usually had and pursued in other causes on the equity aide of the said court, except that the answer of defendants shall not be under oath.
7. All suits in the court of chancery for divorces, may be commenced by filing a petition with the clerk of the court; which petition shall plainly and fully state the cause or causes of the application for such divorce and the relief prayed; and the complainant shall make his or her oath or affirmation to be annexed to said petition, that his or her complaint is not made by any collusion between him or her and the defendant, for the purpose of dissolving their marriage, but in truth and good faith for the cause or causes set forth in the petition.
8. Upon filing the said petition, the cleric shall, if required, make out a
certified copy thereof to be served on the defendant, and issue a citation under the seal of the court for the defendant to answer the said petition
on or before the first day of the next stated term of the court; which citation shall bear date the day of issuing thereof, and be tested in the name of the chancellor.
9. It shall be the duty of the sheriff or coroner, as the case may require, of any county in this state, to whom any such citation and certified copy of the petition shall be directed or delivered, to serve the same, and to, make return of the said citation at the time and place therein mentioned which shall be filed by the clerk.
10. Every such citation shall be served either by delivering for the defendant a copy thereof; together with a certified copy of the petition, or by leaving the said copies at his or her dwelling house or usual place of abode, at least twenty entire days before its return.
11. On a citation being returned " served" or " cited" by the sheriff or coroner, as the case may require, the defendant shall, on the day mentioned therein for him or her to answer the said petition, or within three days thereafter, file his or her answer to the said petition, unless the court shall grant the defendant further time for that purpose; which answer shall plainly and fully yet forth the cause or causes of his or her defense and shall be signed by the defendant, but, not sworn to; after which without any replication or further pleadings or rule, the parties shall proceed to take their evidence as in other cases in the court of chancery, so that the cause may be heard at the next stated term thereafter, unless the court for good cause and upon such terms as shall be considered by the court just and reasonable, shall think proper, to put of the hearing thereof to another term.
12. If a defendant upon the citation being returned “served" or "cited” as aforesaid, shall not file his or her answer to the petition within the time limited by this act or granted by the court, the court may make an order that the petitioner proceed to take depositions and other evidence to substantiate and prove the allegations in the petition, and to bring on the hearing of the cause ex parte.
13. In case a petition as aforesaid shall be filed, and it shall be made to appear by affidavit or otherwise, to the satisfaction of the chancellor, that such defendant is out of this state, or cannot upon due inquiry be found therein, or that he or she conceals himself or herself within this state, the chancellor may thereupon, by order, direct such defendant to answer the said petition, at a certain day therein named, not less than two nor more than six months from the of such order, which order shall within twenty days thereafter, be served on such defendant, by delivery of a copy thereof to him or her, or by leaving it at his or her dwelling house or usual place of abode, or be published in one of the newspapers printed in this state, and designated in such order, and continued for four weeks successively, at least once in every week, and shall be published in such other manner as the particular circumstances of the case may require, if in the opinion of the chancellor, any other or further publication shall be necessary, and in case such defendant shall not file his or her answer within the tine so limited, or within some further time, to be allowed by the chancellor, on proof of due service or publication of said order the court may order and direct the petitioner to produce depositions or other evidence to substantiate and prove the allegations in the petition, and the said petitioner may then proceed ex parte, and bring on the hearing of said cause.
14. No petition, citation, answer, or other proceedings in any suit commenced by petition, as aforesaid, shall be set aside or otherwise annulled or made void for any defect in matter of form, or for any mistake or omission not affecting the real merits of the cause, and the chancellor may permit either party to amend his or her petition, answer or other proceedings in the cause, either in matters of form or substance, and proceed to give judgment according to the merits of the case.
15. In all cases where the proceedings shall be commenced by petition, as aforesaid, it shall and may be lawful for the chancellor, where not otherwise herein directed, to proceed as directed and allowed by this act in other cases, and to make such decree as authorized in such cases, which decree shall be carried into effect in the manner herein directed and provided for, and the court is hereby invested with all powers necessary to the conducting and finally determining such cases, according to the true intent and meaning of this act.
16. When any cause shall be finally determined, which shall be commenced by petition, as aforesaid, the clerk of the court of chancery shall enter or enroll together, in order, the petition, answer, decretal, orders, reports and final decree in such cause, in his book of decrees, which enrollment shall be signed as is authorized and required in other cases.
17. There shall be allowed in the taxation of costs, for the petition, the sum of one dollar; for the answer, the sum of one dollar; to the clerk, for the citation and certified copy of the petition, seventy?five cents; to the sheriff, for serving and returning the citation, one dollar and fifty cents; and to the examiner, for taking the examination of every witness, for each sheet, ten cents, and for certifying every exhibit shown to a witness, ten cents; and that no other or greater fees shall be allowed for the said sere ices.
18. If, in the opinion of the chancellor, any matter of fact shall render the intervention of a jury necessary in any suit or proceeding for a divorce, then the court. of chancery is hereby authorized to direct an issue for the trial of the same in the supreme court, or in one of the circuit courts.
IV. Alimony and maintenance.
19. When a divorce shall be decreed, it shall and may be lawful for the court of chancery to take such order touching the alimony and maintenance of the wife, and also touching the care and maintenance of the children, or any of them, by the said husband, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just; and in case the wife is the complainant, to order the defendant to give reasonable security for such alimony and maintenance; and upon his neglect or refusal to give such reasonable security as shall be required of him, or upon default of him and his surety, if any there be, to pay or provide such alimony and maintenance, to award and issue process for the immediate sequestration of the defendant's personal estate, and the rents and profits of his real estate, and to appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied towards such maintenance and allowance, or to such maintenance and allowance as to the said court shall from time to time seem reasonable and just, or to enforce the performance of the said decree or orders by such other lawful ways and means as is usual, and according to the course and practice of the court of chancery.
20. In case a husband, without any justifiable cause, shall abandon his wife or separate himself from her, and refuse or neglect to maintain and provide for her, it shall and may be lawful for the court of chancery to decree and order such suitable support and maintenance, to be paid and provided by the said husband for the wife and her children, or any of them, by that marriage, or out of his property, and for such time as the nature of the case and the circumstances of the parties render suitable and proper in the opinion of the court, and to compel the defendant to give reasonable security for such maintenance and allowance, and from time to time to make such further orders touching the same as shall be just and equitable, and to enforce such decree and orders in the manner mentioned in the last preceding section of this act; but during the time such maintenance shall be allowed by the decree or sentence of the court, the husband shall not be chargeable with her debts.
21. In any such suit as is mentioned in the last preceding section, it shall and may be lawful for the chancellor, if applied for before answer filed, to order a bond to be given in one hundred dollars, by one or more sufficient freeholders, with condition to pay such costs as shall or may be awarded by the court to be paid to the defendant.
V. Custody and maintenance of minor children.
22. The court of chancery may, on application of either party in a suit for divorce, make such order, concerning the care and custody of the minor children of the parties, during the pendency of the suit, as shall be deemed expedient and for the benefit of the children.
23. Upon a decree of nullity or divorce, the court may make such further decree or order as may be deemed expedient, concerning the care, custody and maintenance of the minor children of the parties, and determine with which of the parents the children, or any of them, shall remain; and may also from time to time afterwards, on the petition of either of the parents, revise and alter such decree or order, and make a new decree or order, as the circumstances of the parents and the benefit of the children shall require.
24. After a divorce decreed in any other state or country, if minor children of the marriage are inhabitants of this state, the court of chancery. on the petition of either parent, or of a next friend in behalf of the children, such notice being given to both parents as the court shall direct, may make such decree concerning their care custody, education and maintenance
if the divorce had been obtained in this state.
25. When the court of chancery has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this state, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order; the court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this and the preceding sections.
26. When the parents of minor children live separately, the court of chancery, upon petition of either parent, shall have the same power to make decrees or orders concerning their care, custody, education and maintenance as concerning children whose parents are divorced.
27. In making an order or decree relative to the custody of the children pending a controversy between their parents, or in regard to their final possession, the rights of both parents, in the absence of misconduct, shall be held to be equal, and the happiness and welfare of the children shall determine the custody or possession.
28. The said court may make the necessary orders and decrees, from time to time, in relation to such custody or possession.
29. In case of a death of the parent to whom the care and custody of
the minor children shall be awarded by the court of chancery, on account
of the misconduct or incapacity of the other parent, or when the parents
are living separately, in case of the death of the parent in whose custody
the children actually are, no award as to the custody of such children
having been made, the care and custody of such minor children shall not
revert to the surviving parent without a decree of said court to that effect;and the said court shall have the right, upon petition of a next friend on behalf of the children, to appoint such friend or other suitable person, guardian of such minor children, and shall have the right to remove such guardian, and to appoint a new guardian or guardians, and to make such
orders, from time to time, as the circumstances of the case and the benefit
of the children shall require.
VI. Miscellaneous provisions.
30. If it appear to the court that the adultery complained of shall have been occasioned by the collusion of the parties, and done with an intention to procure a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery, then no divorce shall be decreed.
31. If any persons, who shall be divorced on account of their being within the prohibited degrees, shall, after such divorce, cohabit together, such persons so offending shall be liable to all the pains and penalties provided by the then existing laws against incest.
32. If any person shall cohabit or live together in the same house, after a divorce for the cause of adultery or prior marriage, such person so offending shall be liable to all the pains and penalties provided by the laws against adultery.
33. Whenever any poor person shall have cause of suit under this act, and shall make an affidavit or affirmation that he or she is not worth one hundred dollars clear estate, the chancellor may, at his discretion, assign to such poor person a solicitor and counsel learned in the law, to prosecute the said cause, who, together with all other officers, shall perform
their respective duties therein without fee or reward.