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16 Wm. & Mary Bill Rts. J. 381 (2007-2008)
Family Law Federalism: Divorce and the Constitution

handle is hein.journals/wmbrts16 and id is 389 raw text is: FAMILY LAW FEDERALISM: DIVORCE AND THE CONSTITUTION Ann Laquer Estin* ABSTRACT American divorce law was transformed by the Supreme Court in a series of decisions beginning with Williams v. North Carolina in 1942. These constitutional full faith and credit cases resolved a long-standing federalism problem by redefining the scope of state power over marital status. With these decisions, the Court shifted from an analysis based on the competing interests of different states to an approach that highlighted the individual interests of the parties involved. This change funda- mentally altered state power over the family by extending to individuals greater control of their marital status. In the process, the Court cleared a path for innovations including unilateral no-fault divorce and divorce based on mutual consent and laid the foundation for a stronger national role in domestic relations law. INTRODUCTION ................................................. 382 I. DIVORCE LAW AND STATE AUTHORITY ........................... 383 A. State Laws and the Full Faith and Credit Problem .............. 383 B. The Campaign Against Divorce ............................. 390 I. REWRITING DIVORCE LAW ..................................... 395 A. Full Faith and Credit and the Unilateral No-Fault Divorce ........ 396 B. Res Judicata and the Mutual Consent Divorce .................. 406 C. Due Process and the Problem of Divisible Divorce .............. 410 III. DIVORCE AND THE CONSTITUTION ............................... 418 A. Divorce Federalism ....................................... 419 B. Divorce as an Individual Right .............................. 424 C. Divorce and Due Process .................................. 428 CONCLUSION .................................................. 430 * University of Iowa College of Law. My thanks go to many colleagues at the University of Iowa and the University of Pennsylvania for their helpful comments and suggestions with this project, including par- ticularly Seth Kreimer, Bill Buss, Arthur Bonfield, Randy Bezanson, and Pat Bauer. Thanks also to Homer Clark, whose work has always given me the benefit of a longer perspective on the law as we find it today.