Divorce and the Constitution

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The constitutional power of the states to prescribe conditions for marriage and divorce went largely unchallenged until the mid-twentieth century. Once Americans became highly mobile, however, new constitutional questions emerged. Divorce might be difficult under some states' laws, and well-nigh impossible under others', but in some places the courthouse doors were open. Could two North Carolinians go to Nevada, stay there for six weeks of "residence," obtain ex parte divorces from their respective North Carolina spouses, marry each other, and return to live in North Carolina without being guilty of bigamous cohabitation? In two cases entitled Williams v. North Carolina (1942, 1945), the Supreme Court answered that question conditionally. The Nevada divorces were valid, and must be given full faith and credit by North Carolina, if the travelers really were domiciled in Nevada when they received their divorces. However, domicile was a jurisdictional requirement for the Nevada courts; North Carolina might constitutionally retry the issue of the previous Nevada domicile, and, if its courts found that domicile lacking, might punish its straying residents.

The Williams "solution" soon crumbled. The Court held in 1948 that if both husband and wife entered appearances in the Nevada proceeding, then neither of them could later challenge the Nevada divorce by way of collateral attack. Nor could a third party attack such a judgment. Perhaps the "true" domiciliary state might prosecute for bigamy in a case just like Williams, but few states had North Carolina's zeal for such prosecutions.

Since mid-century American law in this area has undergone two distinct but related revolutions. First, almost all the states now permit the dissolution of marriage on at least one "no fault" ground. Second, in a variety of contexts the Supreme Court has recognized not only a constitutional right to marry but a broad freedom of intimate association. It is doubtful that a state's interest in preserving a marriage against the will of one spouse would be given the same weight today that the Court gave it in the 1940s. In sosna v. iowa (1975) the majority did remark that domicile was still a jurisdictional requirement for divorce, but the Court might take a different view if a latter-day prosecutor were to bring bigamy charges in circumstances closely resembling the Williams facts. (See marriage and the constitution.)

Sosna itself upheld Iowa's one-year durational residence requirement as a condition on access to the state's divorce court, rejecting the argument that this limitation denied the constitutional right to travel with the comment that the state had not denied divorce but only delayed it. Lawyers, including Justices, are experts in rationalizing; each day's delay in getting a divorce is surely a denial of one day's single status and of the right to remarry. The Sosna rationalization was aimed at distinguishing the Court's earlier decision in boddie v. connecticut (1971). Boddie held, on procedural due process grounds, that indigents could not constitutionally be denied access to the courts in divorce cases for inability to pay filing fees. The Court there remarked on the "basic importance" of marriage, and took note that the state had a monopoly over its dissolution—and thus the availability of lawful remarriage.

The Court has not recognized a "right to divorce" analogous to the "right to marry" confirmed in loving v. virginia (1967) and zablocki v. redhail (1978). However, we are not far from the recognition that the Constitution demands important justification for any significant interference with a spouse's freedom to terminate a marriage. Although the virtual disappearance of highly restrictive divorce laws makes less urgent the recognition of this constitutional liberty, that same change in state law surely alters the climate in which the Justices would evaluate the state's interests urged in opposition to the claim of associational freedom.

The collateral issue of child custody can also raise constitutional issues. Of necessity, a domestic relations court must have wide discretion in awarding custody. Yet because the parent-child relation is itself an intimate association of "fundamental" importance, it is vital that the custody decision not be made arbitrarily. The presumption of custody for the mother over a child of "tender years," for example, raises grave issues concerning sex discrimination. Racial and religious grounds for custody obviously raise constitutional danger signals, as palmore v. sidoti (1984) shows. And for a court to deny custody to a parent simply because he or she is living with another adult outside marriage, or is involved in a homosexual relationship, would also raise serious problems of associational freedom. Of course, at some level of maturity well below the age of adulthood, the child's preference—his or her own associational freedom—takes on constitutional weight that may dominate the custody decision. The Supreme Court has only begun its exploration of these painful subjects. Surely an early priority for the Court will be the reexamination of its old assumptions about the interests that justify a state's imposing its own preferred family patterns on the individuals who must live in them.

Kenneth L. Karst


Garfield, Helen 1980 The Transitory Divorce Action: Jurisdiction in the No-Fault Era. Texas Law Review 58:501–547.

Karst, Kenneth L. 1980 The Freedom of Intimate Association. Yale Law Journal 89:624–692.

Note 1980 Developments in the Law: The Constitution and the Family. Harvard Law Review 93:1156, 1308–1350.