Is there a constitutional right to divorce?

Pretty simple question, really. Couple gets married. Statute is passed by the state legislature banning divorce, on the grounds that divorces are expensive and unpleasant and tough on children and the state has a legitimate interest in preventing them. Couple wants to divorce, and sues state.

What comes next?

Inspired by this story, in case anyone is wondering (sixth paragraph from the bottom), which Revtim posted in MPSIMS.

you have a general constitutional “right” to family relations, i.e. building and maintaining family relations as you see fit. divorce is party of that process by which you build and maintain your family relationship. if the state were to outlaw it completely, it would probably be struck down as unconstitutional.

If there is such a right, it must be based on some existing constitutional right, and I don’t see what that would be. On the other hand, if a state in the US made it very difficult or impossible to divorce, a couple could easily move to another state and divorce there. Their home state would have to recognise that out-of-state divorce.

I would assume you’d win on freedom of association grounds. It’s hard to argue that the state forcing you to share a house with someone and have sex with them isn’t impinging on your freedom of association. IIRC there was a case where an ex-member tried to get the shunning process of the Jehovah’s Witnesses declared illegal, and it was lost based on freedom of association working both ways. ie people have to be free to choose who *not *to associate with.

Unless “no divorce” simply meant that the marriage couldn’t be legally dissolved, but that you could separate, live independent lives, have sex with other people and so forth but not remarry. That would probably be more difficult to win.

Hell, is there even a constitutional right to marriage?


Well, it used to be some states had exceptionally difficult divorce laws (in that obtaining one was not a simple matter). Other states it was much easier. Via Full Faith & Credit people would run to states where divorce was far simpler (such as Nevada) and the courts said those divorces had to be recognized (Williams v. North Carolina).

The courts, near as I can tell, have not actually deemed a “right” to divorce as a constitutional matter. More recently most, if not all, states have a “no fault” divorce mechanism so obtaining a divorce is not especially restrictive anywhere. As such a move to make it a constitutional right is not an especially pressing matter.

That said I feel confident if a divorce became unduly restrictive that the courts would find a right to divorce via freedom of association as mentioned above.

And you might make an argument for a constitutional right to divorce based on Loving v. Virginia – though I don’t think it’s going to be automatic.


That is a right to marry. Not a right to divorce.

opposite side of the same “constitutional right” coin, though.

I assume ReallyNotAllThatBright was answering the post directly before, which asked…

Think I found what I was thinking of:

IANAL but that seems plain enough. The Constitution guarantees you a right *not * to associate with whomever you may wish. If the state forces you to associate with someone you are married to , then clearly they are infringing on that right.

Like I said, if they simply refused to terminate the legal marriage, but didn’t force you to associate with the person in any way, that might be harder to fight.
They could also probably impose all sorts of penalties for breaking the marriage contract too if they liked. But in that case they could hardly argue an interest because divorce is “expensive and unpleasant and tough on children”. All they’ve done is create a de facto divorce with the same effects and even greater costs.

But it seems you do have a constitutional right not to associate with your wife/husband.

I figured that would be taken as read, since I’m the OP, too. :wink:

I’m not sure it has anything to do with freedom of association. I think Boddie v. Connecticut is on point.

To quote the great Erwin Chemerinsky on that case:

Chemerinsky goes on to note that filing fees have been upheld for things like bankruptcy and welfare appeals, but not for divorce. Filing fees for divorce trigger the higher level of scrutiny afforded laws affecting the Constitutional right to marry.

Great book if you’re interested: Constitutional Law by Erwin Chemerinsky.

Had I noticed that, I’d be feeling a little better about myself right now. :slight_smile:

Well, at least you out-comprehended black rabbit. :smiley:

Rights are regulatable in a free society. My right to speak freely does not encompass my right to stand with a bullhorn outside your apartment window at 3:00 AM, nor does it require Creative Loafing to afford me a bully pulpit to express my oh-so-relevant views. My freedom of religion does not entitle me to sacrifice a chicken to the loas on the desk of the Secretary of Defense. My right to marry does not entitle me to marry a 13-year-old, or five wives, or my biological sister (if I had one).

IF there is a right to marry - and I believe that Loving makes that a given – then there is a concomitant right to terminate that marriage for good cause – and a legislative power, vested in the states per the Tenth Amendment, to define the circumstances that constitute ‘good cause’, and ensure that my wish to terminate my marriage does not work harm to another party, e.g., my ex-wife or my children, or creditors of my wife and me jointly indebted to them. At least that is how I’d see it.

The order issued by Dallas District Judge Tena Callahan does not engage in what we might call penetrating analysis of the issue. it says, in pertinent part:

However, this finding is superseded and stayed by action of the Attorney General of Texas, who has appealed the ruling.

I am not aware of a single precedent that would support the claim that either section of Texas law is in fact violative of the EP clause.

Since the marriage is a nullity as far as Texas law is concerned, it’s unclear how Texas might act upon it.

I can see a difference though. That ruling seems to be saying that where divorce is to be granted it can’t be only granted to the rich. Which is fair enough. But it doesn’t seem to address whether it has to be granted at all.

It is presumably legal for the state to put conditions on divorce, such as standards of evidence, grounds and even waiting periods. I assume that’s legal because those restrictions are in place today. So it seems clear that, contrary to what you quoted, the court *can *prevent, or at least delay, individuals from obtaining a divorce if it thinks that the divorce is unreasonable. Or to paraphrase Poly said, the court gets to evaluate whether the grounds are sufficient and the knock-on effects are acceptable.

So in theory I guess the state could put a waiting period on divorce such that it only takes effect when the youngest child turns 18 without being out of bounds on that particular right.

But it seems like they run afoul on the freedom of association as soon as they tell someone they have to live with their spouse and children.

this does not logically follow. the standards set by statute are the same regardless of whether the court “thinks” the divorce is unreasonable or not.

there’s no statute that says “in order to get a no-fault divorce if you’re divorcing because your wife cheated on you, the filing fee is $50 and a separation period of 48 hours is mandated; in order to get a no-fault divorce if you just don’t like your wife and you have kids, the filing fee is $500 and a separation period of 48 months is mandated”. basically, there is no inquiry as to the reasons for the divorce. (note that this doesn’t affect other incidents of divorce, like spousal maintenance and property separation - reasons for the divorce may matter there).

restrictions placed on divorce (fees, conditions, etc.) are universal and identical for all divorcing couples - as this is a fundamental right, any differing conditions would trigger strict scrutiny analysis for the disequal treatment of a class of people.