Status of the Law.
The doctrine of divisible divorce, as devel- oped by Justice Douglas in Estin v. Estin,83 may have become the prevailing standard for determining the enforceability of foreign divorce decrees. If this is the case, then it may be that an ex parte divorce, founded upon acquisition of domicile by one spouse in the state that granted it, is effective to destroy the marital status of both parties in the state of domiciliary origin and probably in all other states. The effect is to preclude subsequent prosecutions for bigamy but not to alter rights as to property, alimony, or custody of children in the state of domiciliary origin of a spouse who neither was served nor appeared personally.
In any event, the accuracy of these conclusions has not been impaired by any decision of the Court since 1948. Thus, in Armstrong v. Armstrong,84 an ex parte divorce decree obtained by the husband in Florida was deemed to have been adequately recognized by an Ohio court when, with both parties before it, it disposed of the wife’s suit for divorce and alimony with a decree limited solely to an award of alimony.85 Similarly, a New York court was held not bound by an ex parte Nevada divorce decree, rendered without personal jurisdiction over the wife, to the extent that it relieved the husband of all marital obligations, and in an ex parte action for separation and alimony instituted by the wife, it was competent to sequester the husband’s property in New York to satisfy his obligations to the wife.86
- 334 U.S. 541 (1948).
- 350 U.S. 568 (1956).
- Four Justices, Black, Douglas, Clark, and Chief Justice Warren, disputed the Court’s contention that the Florida decree contained no ruling on the wife’s entitlement to alimony and mentioned that for want of personal jurisdiction over the wife, the Florida court was not competent to dispose of that issue. 350 U.S. at 575.
- Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). Two Justices dissented. Justice Frankfurter was unable to perceive “why dissolution of the marital relation is not so personal as to require personal jurisdiction over the absent spouse, while the denial of alimony . . . is.” Justice Harlan maintained that, because the wife did not become a domiciliary of New York until after the Nevada decree, she had no pre-divorce rights in New York that the latter was obligated to protect.