Family Law Federalism and the Origins of Modern Divorce Law

87 Pages Posted: 28 Aug 2006 Last revised: 30 Mar 2010

See all articles by Ann Laquer Estin

Ann Laquer Estin

University of Iowa - College of Law

Date Written: March 1, 2010

Abstract

The United States Supreme Court decided a series of cases at the intersection of federalism and family law during the 1940s and 1950s. In these cases, beginning with Williams v. North Carolina, the Court applied the Full Faith and Credit Clause to disputes over interstate recognition of divorce and custody decrees. This article argues that these cases shifted the normative boundaries of state power over domestic relations and made several important changes in the law of divorce.

In implementing a new approach to interstate divorce disputes, the Court embraced no-fault and mutual consent approaches to jurisdiction over divorce, helping to clear the way for the divorce reforms of later decades. By separating the test for jurisdiction to enter a divorce decree from the test for jurisdiction over its financial and custodial aspects, the Court signaled that the incidents of marriage were a more appropriate state concern than divorce prevention. Although these cases preceded the Court's turn toward a new substantive due process approach to family law in the 1960s, the opinions evidence a strong concern for the individual interests involved in marriage and divorce, and this concern is central to the Court's redefinition of state power over divorce.

Keywords: Divorce Law, Family Law, Federalism

Suggested Citation

Estin, Ann Laquer, Family Law Federalism and the Origins of Modern Divorce Law (March 1, 2010). William & Mary Bill of Rights, Vol. 16, No. 2, 2007, U Iowa Legal Studies Research Paper No. 06-03, Available at SSRN: https://ssrn.com/abstract=926552

Ann Laquer Estin (Contact Author)

University of Iowa - College of Law ( email )

Boyd Law Building
Iowa City, IA 52242
United States
319-335-6850 (Phone)
319-335-9098 (Fax)

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