Can US states prohibit divorce?

[alphaboi867]

Is there any consitutional reason why a state can’t eliminate divorce and only allow marriages to be disolved by death? Would the full faith and credit clause force that state to recognize out-of-state divorces even though divorce would be against it’s public policy? One a related note, what was the last state to permit divorce?

[RealityChuck]

Well, back in the 60s, New York only recognized adultery as grounds for divorce, so most New Yorkers traveled to Nevada. The divorce was then recognized. (Billy Joe’s song “Stop in Nevada” refers to this).

So if a state did outlaw divorce (and that would probably be within its rights), it would still have to recognize divorces granted by other states to its residents.

[Crescend]

Hm. Are there different grounds for requiring states to recognize divorces than there are for requiring states to recognize marriages? Or are the legal grounds still in flux?

[Gfactor]

Before no-fault divorce, what are now called uncontested divorces were often more-expensive collusive lawsuits. And as RealityChuck points out, a lot of peope just went elsewhere. http://www.brandeslaw.com/grounds_for_divorce/history.htm

I think there is some Supreme Court dicta that says states aren’t consitutionally required to grant divorces. I’ll see what I can find.

[silenus]

I wish I had my reference books with me right now. The Supreme Court did have a case about divorce in which it set out the rule that you have to be a legal resident of a state, and intend to reside there for a divorce to be recognized under the full faith and credence clause. I’ll try to find the citation.

[Gfactor]

Ok. Didn’t find what I was looking for.

Here’s what I’ve got.

Boddie v. Connecticut, 401 U.S. 371 (1971): State cannot deny access to divorce procedure based on inability to pay filing fee: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&navby=volpage&court=us&vol=401&page=377#377

Sosna v. Iowa, 419 U.S. 393 (1975): One-year residency requirement constitutional: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&navby=case&court=us&vol=419&invol=393

@Rehnquist in Sosna

The durational residency requirement under attack in this case is a part of Iowa’s comprehensive statutory regulation of domestic relations, an area that has long been regarded as a virtually exclusive province of the States. Cases decided by this Court over a period of more than a century bear witness to this historical fact. In Barber v. Barber, 21 How. 582, 584 (1859), the Court said: “We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce . . . .” In Pennoyer v. Neff, 95 U.S. 714, 734 -735 (1878), the Court said: “The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved,” and the same view was reaffirmed in Simms v. Simms, 175 U.S. 162, 167 (1899).

Then again, despite this rather grand pronouncement, the Court went on to evaluate the justifications given by the state.

Rehnquist distinguished Boddie.

In Boddie v. Connecticut, supra, this Court held that Connecticut might not deny access to divorce courts to those persons who could not afford to pay the required fee. Because of the exclusive role played by the State in the termination of marriages, it was held that indigents could not be denied an opportunity to be heard “absent a countervailing state interest of overriding significance.” 401 U.S., at 377 . But the gravamen of appellant Sosna’s claim is not total deprivation, as in Boddie, but only delay. The operation of the filing fee in Boddie served to exclude forever a certain segment of the population from obtaining a divorce in the courts of Connecticut. No similar total deprivation is present in appellant’s case, and the delay which attends the enforcement of the one-year durational residency requirement is, for the reasons previously stated, consistent with the provisions of the United States Constitution.

This discussion and those in other opinions suggest that the *Boddie * was a procedural due process and equal protection case. In other words, the Court won’t permit a person to be denied a hearing because he can’t fail to pay the filing fee–and won’t permit divorces to be granted or denied based on some discriminatory reason–but probably would permit divorce to be granted only for very limited reasons, at least.

Would the full faith and credit clause force that state to recognize out-of-state divorces even though divorce would be against it’s public policy?

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=317&invol=287

[Exapno_Mapcase]

Was divorce recognized by all the states in 1789? If not, then divorce was something that was written into the laws at a later date. And so could presumably be written out of the laws again.

Nevada is a relative latecomer to the divorce game. Over the course of the past 200 years a number of states have realized what a lucrative business having lax divorce laws could be. At first, these lax states were midwestern: closer to the east coast population centers but above the Bible Belt. As time went on and they became more “civilized,” the stricter their standards became and the farther west the divorce capital moved. Finally Nevada, which didn’t have much reason for anybody to go there for any other purpose, took over the business and developed a whole industry to go around it.

Claire Booth Luce’s famous 1936 play, The Women (made much more famous by the 1939 movie), is set in a Reno dude ranch, one that houses women needing a place to stay for the six weeks of their residency before they can legally divorced. A classic, and the attitudes toward men and marriage are a must-see.

[alphaboi867]

@Exapno Mapcase

Was divorce recognized by all the states in 1789? If not, then divorce was something that was written into the laws at a later date. And so could presumably be written out of the laws again…

I know that in several states a couple wanting to get divorced needed a private act of the legislature dissolving their marriage (just as in England).

[R.P.McMurphy]

What about the right to “life, liberty and the pursuit of happiness”?

Sounds like a good legal argument to me.

[silenus]

Williams vs North Carolina (1945)

That was the case I was thinking of. On appeal, the Supreme Court held that the Williams’ had not in fact established bona fide residence in Nevada, and upheld their convictions for bigamous cohabitation. The key to the residence requirement was “intent to reside there permanently, or at least indefinitely.”

[Gfactor]

@silenus

Williams vs North Carolina (1945)

That was the case I was thinking of. On appeal, the Supreme Court held that the Williams’ had not in fact established bona fide residence in Nevada, and upheld their convictions for bigamous cohabitation. The key to the residence requirement was “intent to reside there permanently, or at least indefinitely.”

That’s the third link I posted above. It’s a full faith and credit case.

@Justice Douglas

when a court of one state acting in accord with the requirements of procedural due process alters the marital status of one domiciled in that state by granting him a divorce from his absent spouse, we cannot say its decree should be excepted from the full faith and credit clause merely because its enforcement or recognition in another state would conflict with the policy of the latter.

(reversing conviction and remanding with directions).

[silenus]

That’ll teach me not to click on a link! :smack:

[Gfactor]

@silenus

That’ll teach me not to click on a link! :smack:

OTOH, I had planned on labeling it the link, but got lazy. Sorry.

[scm1001]

@Exapno Mapcase

Claire Booth Luce’s famous 1936 play, The Women (made much more famous by the 1939 movie), is set in a Reno dude ranch, one that houses women needing a place to stay for the six weeks of their residency before they can legally divorced. A classic, and the attitudes toward men and marriage are a must-see.

Seems similar to the 1985 film Desert Hearts?