Haksgaard: Homestead Rights of Deserted Wives: A History

In Homesteading Rights of Deserted Wives: A History, Hannah Haksgaard (University of South Dakota School of Law) examines federal administrative decisions regarding deserted wives who attempted to take over homestead claims.  The experience of these women was fundamentally different from single women (never-married, divorced, or widowed). Married, but deserted by their husbands, these women’s homestead claims were made against a backdrop of legal rules surrounding marriage and the complicated concept of separation.

Building on legal historians’ work on martial separation in the late nineteenth and early twentieth centuries and drawing on the published opinions of the Secretary of the Department of the Interior, Haksgaard focuses on three highly litigated issues: the determination of homestead residency when the husband and wife live in different places, the determination of homestead residency when the wife makes a claim in her own name, and the complications arising from the time at which a deserted wife needed to allege desertion and homestead abandonment in order to make her claim.

Haksgaard finds that these three areas of litigation reveal trends that are in some ways similar to trends found in marriage and separation litigation beyond homesteading. Those trends include the role of fault, the preference for encouraging private support for the deserted wife, and the protection of marital privacy. However, deserted wives’ unique situations sometimes revealed different manifestations of these trends. For instance, the preference for private support in marriage law often resulted in decisions that kept women in marriages with their husbands. But in the homestead-claim context, this preference often supported the wife’s claim for the homestead, which would likely support her better than the deserting husband.

In Homesteading Rights of Deserted Wives, Haksgaard uses these wives’ unique experiences and their public willingness to claim their real property to give us a more complete understanding of how marital norms and separation operated at the time.

This digest benefited from significant contributions from Aurora Kenworthy, UNL Law Student.