Family Law Federalism and the Origins of Modern Divorce Law
87 Pages Posted: 28 Aug 2006 Last revised: 30 Mar 2010
Date Written: March 1, 2010
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
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