Marriage-Divorce-Chaos-Why?: Our Chaotic Marriage and Divorce Laws

              Figure
DEAN FULLER, LL.B.



Marriage-Divorce-Chaos-Why?
 OUR CHAOTIC MARRIAGE AND DIVORCE LAWS 
A Dean Fuller Lecture

WHY THE CONFUSION?



Forty-nine distinct varieties of laws govern marriages and divorces in the United States.  With American citizens free to move about and change their temporary and permanent residence at will in our 48 states, District of Columbia, and our territories, etc., their marital status, that of their children, and the domestic relation laws to which they are subject, vary with every move, whether it be permanent or temporary.




Each State may provide where, when, how, and under what circumstances the status of man-and-wife is created.  Some require no formalities except that they live together as man and wife; the legal effect being that so-called common-law marriage results.  Some States are most strict and formal, requiring licenses to be granted on presenting certificates of good-health, with a delay following the making of application for marriage license.




Some States grant divorces on many grounds.  In New Hampshire there are 14.  One state, South Carolina, grants no divorces.  Some, on one ground only:  infidelity, in New York.  New Hampshire grants divorces if one of the spouses joins the Shakers Religious Sect.  Louisiana, for defamation of character.




Some States make a business of soliciting divorce actions from citizens of other states:  Nevada, Florida, Arkansas and Wyoming do this.  Some States recognize such divorces; others do not.




Quick-divorce
 States are therefore deliberately invading 
state rights
 of others—the constitutional 
state right
 to have laws to govern their own citizens.  State laws on marriage and divorce are therefore violated with impunity by citizens who do not wish to abide by the laws of their own state—provided they can afford the expense of a trip and a short sojourn in a 
quick-divorce
 state: Nevada, 45 days; Arkansas and Wyoming, 60 days; Florida, 90 days.




But while a marriage or divorce may be legal in the state in which the former was entered into or the latter granted, the status so created is nevertheless subject to any of 49 different interpretations in the United States alone when either of the parties directly interested, their children, or a new spouse, passes into another state.  For each state exercises its prerogative regarding the legality of foreign-made marriages and foreign-Court divorces. From this fact arises the greatest number of problems involving 
conflicts of law
 to be found in any phase of American law.




A few of the problems that have come before our Courts are given here.





SOME PROVOCATIVE LEGAL PROBLEMS ARISING FROM OUR CHAOTIC MARRIAGE AND DIVORCE LAWS
QUESTIONS CONCERNING COMMON-LAW MARRIAGES

Common-law marriages may be entered into in 40 of our states.  Other states have put an end to them, (New York in 1933) but without retroactive effect on those previously made.




1.


Will a common-law marriage, entered into in a State where they are legal, be accepted in one where such contracts cannot be made in this form?


2.


Does a common-law marriage require a divorce to terminate it?


3.


Is bigamy committed where a formal marriage to another is made without obtaining a divorce from the common-law spouse?


4.


Are the rights of a surviving common-law spouse in the estate of a deceased spouse the same as they would have been had they married according to statutory law?


5.


Is a common-law marriage consummated by registering in a hotel as man-and-wife, and living together?


6.


Can the crime of adultery be committed by common-law spouses?


7.


Has a common-law spouse the right to sue for damages for 
alienation of affections
 of the other?


8.


Are common-law spouses liable for debts of the other for purchases of necessities?





QUESTIONS CONCERNING STATUTORY OR FORMAL MARRIAGES



Every State lists persons who may not marry under its laws:  fixes ages, 
with
 and 
without
 consent of parent or guardian; establishes prohibitions covering relationships of consanguinity and affinity; mental and/or physical healthy conditions, etc.; some states prohibit marriages between certain races.




9.


What are the legal effects in the home States of marriages in another State, when such marriages are prohibited in the following cases:


A.


Between proscribed relatives?


B.


Of whites with proscribed colored persons, or with those having negro, Indian, Mongolian, or Malay blood?


C.


Where 
home State
 divorce decree prohibits remarriage of one guilty of adultery?


D.


Where local laws prohibit, or regulate with consent, marriages below certain ages?


E.


Where medical certificates are required?


F.


Marriages with epileptics, feeble-minded and insane persons?


G.


Where the home law requires a 
delay
 period to follow application for license and filing of document, before license will be issued?



10.


What is the status in a 
home state
 which denies or restricts such marriages, of a marriage entered into in another state having no such restrictions?


11.


What are the effects of such a marriage in states other than the home state; or than the one in which such marriage takes place?






QUESTIONS ARISING FROM 
QUICK
 DIVORCES



12.


Which states, if any, accept divorces obtained by their own citizens in 
quick-divorce
 states, such as Nevada, Florida, Arkansas and Wyoming?  Of those obtained in Mexico, or France?


13.


Which states, if any, accept such 
quick divorces
 of citizens of 
other
 states, or of foreign countries?


14.


What is the legal status in the 
home
 state of 
quick divorces
 obtained by service of summons obtained upon defendant through its publication?


15.


Under what circumstances, if any, will 
your
 state accept the foregoing type of 
quick divorce
 by one of its own citizens?


16.


If your state will not accept such a divorce, is remarriage by the holder of such a divorce legal in (a) your own state?  Or (b) in other states?  If so, in what states?


17.


Will such remarriage be bigamous if illegal in your state, or in the state where it took place?


18.


Can a legal marriage be consummated anywhere if the preceding divorce is without legal effect in the home state?


19.


Which states refuse to recognize divorces of their citizens who have purposely gone to other states to procure them in violation of their own state laws?


20.


What is the marital status in their respective 
home
 states, of each of two spouses who have obtained divorces against each other in 
different
 states by publication of summonses on the other and not by personal service?


21.


Must a divorce be obtained to dissolve a common-law marriage?


22.


What is the marital status, and other effects of such a marriage in another state, of one whom the 
home
 divorce Court has decreed shall not remarry?


23.


Do any or all states recognize 
quick divorces
 of their own citizens if the absent spouse-defendant entered a legal appearance in the divorce proceedings, but without actually being personally within the jurisdiction of the divorcing Court?


24.


Will a home state enforce a 
quick-divorce-state
 decree for alimony obtained against a non-appearing defendant?  Or for custody of minor children when given to the plaintiff by such decree?


25.


Can a man have two legal wives (or a woman two legal husbands) according to the laws of different states, and yet not be a bigamist?


26.


Is one guilty of any crime who marries another knowing that the other is not legally divorced according to the laws of the place of the new marriage?  What crime?


27.


Does remarriage of a divorced wife always terminate her right to receive alimony from her former spouse?


28.


What are 
mail-order
 divorces?  Are they ever legal?  If so, where?


29.


Are divorces ever granted by mutual consent?  If so, where?  Where are they legal, if at all?


30.


Can a citizen of the United States ever obtain a foreign divorce that will be legal in all parts of the United States?  If so, where and under what circumstances?


31.


Can one ever commit bigamy even after a divorced spouse is remarried?


32.


What is the status of a divorced husband and wife who later resume marital relationship without going through a new marriage ceremony?






QUESTIONS INVOLVING CHILDREN OF DIVORCED PERSONS



33.


What effects will be given in the home state to provisions of a 
quick-divorce
 state decree regarding the custody of children, when (a) the children were within the jurisdiction of the 
quick-divorce
 state Court at the time the divorce was granted; (b) when they were in 
another
 state at that time?


34.


If the parties to a 
quick-divorce
 decree not accepted in the home state, remarry in another state where the divorce is legal, and a child is born of the second marriage, will it be legitimate or illegitimate (a) if born in a state which recognizes the divorce, or (b) in the 
home
 state which does not recognize it?


35.


Under what circumstances, if any, will a child inherit from its father as his legitimate heir if he leaves property in a state which will not recognize his divorce and which therefore brands the child's mother as a 
concubine
 and does not recognize her as the wife of the child's father?


36.


Under what circumstances, if any, will a child born 
out of wedlock
 according to the law of the home state, be a legal and legitimate child of its father?





QUESTIONS OF PROPERTY AND ESTATES OF DIVORCED PERSONS



37.


Are there ever circumstances under which a divorced wife will inherit from her divorced husband, and exclude his second wife and the children of the second marriage from inheriting?


38.


When will the first wife, and the children of the second wife, inherit from the divorced husband and father, but the second wife be excluded?


39.


When will the second wife and her children inherit as well as the first wife and her children, from the husband-father?


40.


After a 
quick-divorce
 has been obtained which is not recognized in the home state, what is the status of the interest of the first wife in the real property of the divorced husband and in which the divorced first wife had a dower interest?




As many as possible of these problems are discussed, and remedies suggested, in 
Dean Fuller's Lectures.




Most of the answers will be different for the various states—
possibly 49 varieties!




For open dates … fees … information … write
 
DEAN FULLER LECTURES—W. A. Murchison, Manager 386 Fourth Avenue New York City
 Telephone:  CAledonia 5-9152