Wednesday, January 27, 2021
Michael J. Higdon (Tennessee) has recently posted to SSRN his paper If You Grant It, They Will Come: The Enduring Legal Legacy of Migratory Divorce. Here is the abstract:
Fifty years ago, California became the first state to enact no-fault divorce, making it easier than ever before for individuals to dissolve unsuccessful marriages. Soon every state would follow suit, and over the years much has been written about this national shift in the law of divorce. What has thus far escaped scrutiny, however, is one of the prime casualties of that switch—the phenomenon of migratory divorce. That failure is somewhat ironic given that, although no-fault divorce has existed for just over fifty years, migratory divorce played a prominent role in American legal history for well over a hundred years. Migratory divorce is the process through which people who lived in states where a divorce was difficult to obtain would temporarily relocate to another state—one with more liberal divorce laws—in order to satisfy that state’s domicil so as to obtain a divorce there. Divorce in hand, that person typically returned home to continue life as an unmarried person. Many states, however, opposed recognizing such divorces, giving rise to multiple Supreme Court opinions dealing with when a state is constitutionally required to recognize such a decree. Contemporaneous with that debate, a large number of Americans fiercely opposed the practice of migratory divorce altogether, fearing the impact it was having on the sanctity of marriage. As a result, there were a number of proposals over the years for dealing with the “problem,” primarily involving constitutional amendments and uniform laws. In light of this history, it is the position of this Article that the era of migratory divorce offers an invaluable resource for those studying not only the development, but also the continuing evolution of the American family law. Accordingly, this Article chronicles that legal phenomenon, offering detailed analysis of the various social, legal, and political influences that ultimately shaped this unique time in American history. The purpose in doing so is to, first, ensure that this fascinating period in American history is not forgotten, but more importantly, to distill the legal lessons this era gave rise to—lessons that are highly instructive to contemporary scholars, courts, and policy makers alike as they continue to wrestle with the emerging problems facing the law of domestic relations.