“Duty, not debt”: Legal Challenges to Family Support Enforcement, 1830-1905, Elizabeth Katz
Historians of family and gender have long recognized that some husbands and fathers extralegally deserted their families to circumvent financial support obligations in the nineteenth and early twentieth centuries. Scholars have rarely noted, however, that many men remained local and lodged legal objections to imposition of this liability. This paper intervenes in literatures on families, capitalism, labor, and law by excavating and analyzing men’s challenges to enforcement of family support orders. It argues that as aspects of industrialization—including the rise in wage labor, increase in men’s mobility, and shift in attitudes about debt—undermined longstanding legal and social methods of ensuring that men provided for their wives and children, judges and legislators sought to retain the family as a site of privatized dependency. Litigation on two issues prompted the greatest uncertainties for courts. First, after the abolition of debtors’ prisons, did judges retain the power to incarcerate men for failing to pay court-ordered support awards? And second, should the Bankruptcy Act of 1898, which permitted discharge of any “fixed liability,” apply to family support orders? Through fraught and contingent analyses, lawmakers justified treating family support obligors more harshly than other categories of debtors by reasoning that family support arrears were not “debts” because they were “duties.”