Indiana must also be credited for several changes, mainly through the efforts of Robert Dale Owen, which somewhat bettered the condition of married women. During the 1837-1838 legislative session Owen pushed through a bill (over the vehement protests of a fellow lawmaker who thought it a subversion of society) that replaced dower with a provision guaranteeing women two-thirds of her husband's estate. Unfortunately, it was repealed in 1843 when some legislators still angry about the law took advantage of Owen's move to the U.S. Congress to strike his measure from the books. Ironically, during that same 1843 session lawmakers gave married women the power to devise wills. Indiana also afforded some protection for married women by excluding property brought into the marriage from being used to ameliorate debts against the husband's estate. By the same token, it also awarded an adulterous wife's property to the aggrieved husband forever. An aggrieved wife, however, was only entitled to her one-third share of her husband's estate.
Hoosier women, then, lived under legal restrictions no worse – and in some cases better – than other American women. Again, much depended upon the couple's relationship and many wives enjoyed freedoms above those accorded by the law books. A survey of early Hamilton County [IN] probate records showed most wives received at least their legal share. Trader and businessman John Conner allotted his wife only her minimum portion, while others were more generous. William Dyer gave his wife land and personal property exceeding one-third of his estate and Robert Colborn and S. Walls gave their wives their entire estate. Walls, though, attached an addendum typical of the time which stated in the event of his wife's remarriage, all of the estate would pass to his sons.
Divorce was neither prevalent nor particularly acceptable during the first half of the nineteenth century. There were strong social and religious objections to the sundering of what many viewed as a sacred commitment. The whole "concept of divorce" was anathema to many and was usually applied only as a least resort. This does not mean it was virtually unknown in Indiana and the midwest. The Hoosier state, like others, viewed marriage as a civil contract and used its "legal Sovereignty... to determine its own policy with respect to marital affairs."
However, by the 1840s, Indiana was to become renowned for having among the most liberal divorce laws and acquiescent court systems in the nation. So liberal were they that Indiana might be called the Reno of the nineteenth century and a movement grew after the Civil War to reform the Hoosier state's pliant divorce statutes. Indiana was such a divorce mecca that famous archaeologist Heinrich Schliemann, discoverer of Troy, moved to Indianapolis for a period in 1869 specifically to obtain a divorce. This liberalization of Indiana's divorce laws, probably an outgrowth of the "New Harmony influence," evolved gradually, however.
Indiana early on recognized that it was an "interested third party" in the marriage contract. In 1807 territorial law allowed the General and Circuit Courts to grant absolute divorce in cases of "bigamy, impotency, and adultery." A legal separation (mensa et thoro) was provided for on the basis of "extreme cruelty." These laws were enacted despite the antipathy of Indiana's Territorial Governor, the aristocratic William Henry Harrison, who believed that, if divorce must be granted, the power ought to be "properly lodged with the legislature." Not surprisingly, the legislature was given the power to grant divorces and effected the dissolution of over one-hundred marriages from 1807-1840. During the territorial period more than half of the approved petitions (12 of 20) were instigated by women. Such was the case of Jane Richardson of Harrison County (ironic, as the county was named after the governor who disliked divorce) who sought a divorce after her husband "connected himself with a banditti of horse thieves" and subsequently abandoned her and their two children.
In 1813 legislators added to the reasons thought proper to entail divorce by allowing the granting of petitions based on abandonment and conviction of a felony. Absolute divorce was also acceptable in cases of cruel treatment by the husband which might endanger the wife. This last provision indicates that the lawmakers did not think "that the number of men dominated by their wives" was numerous enough to justify legislation for their [the husband's] protection. The governing body also sought to reinforce the gravity of divorce by stating that "minor grievances were not cause for divorce," no matter how "inconvenient the marriage might become." Also attached to the law was a stipulation that adjured local prosecutors to oppose the granting of a divorce "not warranted by this act." This section was repealed in 1814, but reinstated a few years later. It was not a provision that simply lay unheeded on the book. The first divorce petition filed in Hamilton County was disallowed by the court and prosecutor as being without just cause.
After attaining statehood in 1816, Indiana made further additions and refinements to its divorce code. By 1838 habitual drunkenness (for two years or more) by the husband became justification for divorce. And, in an important move, it gave the courts increased discretionary powers. In addition to the specific reasons spelled out in the law, it allowed judges to grant decrees "in any other case where the court, in the exercise of sound discretion, shall deem it reasonable." Such power in the hands of a willing judge, and there appear to have been a few of those, could open many new just causes for divorce. With the Revised Statutes of 1843 the state sought to "integrate all matters of domestic relations into one comprehensive law." Though it was without "substantive change, the 1843 statute acted to clarify and detail Indiana divorce laws." It retained the six major grounds for divorce: adultery, impotency, abandonment, cruel treatment, drunkenness, and commission of crimes. It also maintained the important discretionary powers of the courts.
Other provisions of the 1843 laws included protections for women. One section provided for restraints against a violent husband while the divorce was pending (a sort of 19th-century restraining order) and the provision for alimony and child support. If the divorce was precipitated by the husband's misconduct, the wife was entitled to immediate possession of her share of her real estate as if widowed, and was to receive the property (dowry) she brought into the marriage. Conversely, if the wife were the adulterer, her husband could hold her personal estate forever. The one major change was the elimination of the menso et thoro decree, which was tantamount to a permanent legal separation, but these were seldom used in Indiana, this was not a particularly important action.