If you are seeking information on divorce, an experienced Herriman Utah divorce lawyer is your best friend. Utah divorce law is complex. American law in general is very complex.
Like a spider’s web, the web of law is very complex and, except to insiders, may seem entirely bewildering, but it has structure. Do not attempt to navigate the complex web of Utah divorce laws. Seek the assistance of an experienced Herriman Utah divorce lawyer.
The structure of the American legal web, and thus its complexity, is driven by the principles of separation of powers, checks and balances, and federalism. So, theoretically, the task of law is divided among lawmakers (the legislative branch), law enforcers (the executive branch), and law interpreters (the judicial branch). Of course, even theoretically, the edifice began to teeter right from the beginning because the Founders, in attempting to make “ambition … counteract ambition,” added checks and balances to the mix, giving the lawmakers power over the enforcers and interpreters, the law enforcers power over the makers and interpreters, and the law interpreters power over the makers and enforcers. Moreover, they threw federalism into the mix, resulting in the whole system replicating itself over (today) fifty additional systems. Thus, even in its most pristine, original form, the structure of American law is very complicated.
Court Organization and Structure Herriman Utah
In many ways, although courts tend to be the most mysterious of our governmental institutions, they tend to be the most familiar part of the legal system. When we think about the law, we usually have courts in mind. This tends to be the case even though most of us do not have much experience with courts. You may serve on a jury or go to traffic court or go through a divorce, but very few laypeople, except, of course, for jurors and a few litigants, have ever experienced a real live trial. Moreover, when we move beyond the trial courts up to the level of appeals courts, generally only lawyers and judges are directly involved.
On the other hand, almost everybody has watched a TV or movie trial. Litigation has been a staple of American entertainment since the time of the Founders. Whether it comes packaged as the real thing (in the forms of gavel-to-gavel O. J. Simpson coverage, or the endless leaks and rumors that made up the news of President Clinton’s legal/political woes, or the full platter of murders and romantic misadventures that constitute the daily fare offered by Court TV), as the semi-real thing (in the ever stern but fair judgments of Judges Joe Brown and Judy), or as pure fiction (in such forms as Scott Turow novels, John Grisham movies, or any one of the many lawyer-centered dramas that have been a mainstay of television since the 1950s), the media is where most of us get our impressions of the system and structure of our courts.
Now there is certainly nothing wrong with court based entertainment—indeed, it can be absolutely riveting, sometimes a lot of fun, and occasionally even educational. It is riveting and fun because court-based entertainment tends to focus on the unusually dramatic, the unusually glamorous, and the unusually horrific. It is occasionally educational because it offers us a slice of law, usually in easily digestible form. At the same time, however, these entertainment-oriented attributes can be very misleading. As unusual as the entertainment bill of fare is, the real work of courts, more often than not, is the stuff of everyday life, and as simple as TV makes it all seem, the American court system is incredibly complex—a huge web of detailed yet overlapping jurisdictional boundaries.
Indeed, let us begin with the term jurisdiction for it is key to the organization and work of the courts. Jurisdiction has to do with the legal limitations on the types of cases a court may hear and decide. Jurisdiction may be set by a constitution, or, in the case of supreme courts, largely by the court itself, but the most common source of court jurisdiction is the legislature. Thus, as much as we may like to think of the law as being above politics, in fact, even on this most basic point—the kinds of cases courts can hear and decide—legislative politics is the starting point.
How do legislatures, or constitutions, or sometimes courts, classify jurisdiction? Generally, according to three kinds of considerations: geography, subject, and function.
First, courts are authorized to hear and decide conflicts that arise within specific geographical jurisdictions. For instance, a Utah court has no jurisdiction to try a person accused of committing a crime in California. Further, a court’s political boundaries (i.e., its geographical jurisdiction) are typically drawn along the lines of other governmental bodies such as cities, counties, or states. Hence, the trial court for Herriman, Utah would generally not have jurisdiction over a crime or civil suit arising in Salt Lake City, Utah.
Jurisdiction is also determined by subject matter. For example, state trial courts of limited jurisdiction are restricted to hearing a circumscribed category of cases, typically misdemeanor crimes and civil suits involving small amounts of money. In contrast, trial courts of general jurisdiction are empowered to hear all other types of cases (generally speaking, cases the legislature deems more serious such as criminal felonies and civil claims with no dollar limitations). In addition, certain types of cases are not allowed to be brought to court. For instance, courts have no jurisdiction to decide church disputes over doctrinal matters. Or, for another example, the U.S. Supreme Court will not hear cases involving so-called “political questions,” although, as we discuss below, what constitutes a political question changes from Court to Court and era to era.
Finally a court’s jurisdiction is set by functional considerations. Functionally, a court may have either original jurisdiction or appellate jurisdiction, and some courts have both. Most courts in this country are courts of original jurisdiction, which means they have the authority to hear and decide a case in the first instance—in other words, if there is to be a trial, here is where it occurs. Appellate jurisdiction, on the other hand, means that a court has the authority to review cases that have already been decided by a court of original jurisdiction or a trial court.
The principal difference between a trial and an appeal is that a trial focuses on determining facts, whereas an appeal focuses on correctly interpreting the law. Obviously, both sets of courts are dealing with facts and law, but the principal focus is different. So, for example, if a person is charged with committing murder, the trial court’s primary job is going to be to consider and weigh evidence and witnesses about the alleged facts of that murder—whether the defendant could be placed at the scene of the crime, whether the weapon used was hers, whether she had a motive, and so on.
Now, let’s say that our ill-begotten friend is convicted of the abovementioned crime. A criminal defendant who loses at trial can appeal her case. She would appeal alleged legal errors. She might claim, for example, that the police seized the weapon from her home illegally and then, further, that the court compounded the error by allowing the weapon to be introduced at trial. Or she might claim that the judge gave biased instructions to the jury, or that the judge allowed the prosecutor to proceed in a prejudicial manner. These are all questions of law and these are the kinds of questions an appellate court would consider. To take some well-known real life examples, had Mr. Simpson been convicted, he would have appealed, for instance, the judge’s allowing his friend to relate the content of a dream in court. He would have contended that as a matter of legal procedure—of law—Judge Ito should not have allowed a witness to talk about what he claims the defendant related to him about a dream. Similarly, Timothy McVeigh appealed his Oklahoma bombing conviction on grounds of “juror misconduct, unfair exclusion of evidence that ‘someone else may have committed the bombing,’ prejudicial pretrial publicity and inflammatory testimony by victims’ relatives” (“McVeigh Conviction, Sentence Upheld,” 1998). Appeals courts consider these kinds of questions, and only rarely do they go over the facts again.
Because of this difference in function, trial and appeals courts operate very differently. In appellate courts, no witnesses are heard, no trials are conducted, and juries are never used. Indeed, the appeals process is often entirely conducted on the basis of paper records and briefs, although in some cases the lawyers representing both sides will present their arguments orally. In addition, instead of a single judge deciding, which is the norm in trial courts, groups of judges generally make appellate decisions.
Our system of federalism, too, has jurisdictional implications. We are blessed (or cursed, depending on your perspective) with a dual court system in this country: one national system and fifty state systems—in other words, fifty-one court systems. To put it in overly simplistic terms, federal courts have exclusive jurisdiction over federal laws and state courts have exclusive jurisdiction over state laws, but this is indeed an oversimplification. The basis for federal court jurisdiction is the U.S. Constitution. Over the years, this vague jurisdictional outline has been fleshed out by Congress in numerous detailed statutes. While these rules are very complicated, it is possible to boil federal jurisdiction down into three broad categories:
• Federal question jurisdiction is based on the subject matter of cases. Federal courts are entitled to hear all civil and criminal cases that are based on the U.S. Constitution, on treaties with other nations, and on federal statutes.
• Federal party jurisdiction consists of cases in which the federal government is a party. Nearly all cases brought by or against the federal government, a federal agency, or a federal officer can be heard in federal court.
• Diversity jurisdiction is based on geography. Federal courts can hear cases in which there is a diversity of citizenship between the parties (if they are citizens of different states or if one is a citizen of a foreign nation), as long as the suit is for $75,000 or more.
Some disputes involve both state and federal law. For instance, narcotics possession or transporting kidnap victims across state lines violate both federal and state laws, which means the accused could be tried twice. Or, a particular act may violate one set of state laws and an entirely different set of federal laws. An obvious example of this would be the police officers involved in the infamous Rodney King beating. They were accused of violating a variety of state assault laws; they were also accused of violating the federal civil rights law—same act, but two different sets of laws were at issue and two different jurisdictions involved. Indeed, dual jurisdictional crimes have been increasing at an enormous rate over the past decade, as Congress has moved to federalize more and more criminal activity, involving a substantial number of crimes that previously were the sole domain of state justice systems—everything from narcotics possession to car jackings to failure to pay child support. This congressional tendency to nationalize sanctions for bad behavior contributes mightily to the federal courts’ caseload, encourages jurisdiction shopping by aggressive prosecutors, and the blurs lines of sovereign authority and accountability, “threatening,” according to Chief Justice William Rehnquist, “to change entirely the nature of our federal system” Still, although (literally) millions of cases move through the federal courts every year and the number of these cases is increasing, the fact of the matter is that for most of us who find ourselves in court because of an unhappy marriage, an altercation with a neighbor, or an unlucky highway encounter with a state trooper, our legal adventures will begin and end in a state court system. In fact, of all the cases in the litigation universe, state courts will hear about 98 percent of them. Divorce courts in Herriman are part of the Utah state courts system.
State court systems—and the federal system, for that matter—are organized hierarchically. Thus, most state systems feature a series of minor trial courts, major trial courts, a smaller number of intermediate appeals courts, and a single supreme court. To all four of these court prototypes there are exceptions and a great deal of variation, but this four-level pyramid is the general rule.
In general, we can break the business of the law down into two very broad processes: that which deals with civil issues, and that which is concerned with criminal problems. One of the first cuts one needs to make in talking about work in the legal web is the distinction between substantive law and procedural law.
Substantive law is concerned with actual content—the real meat of the law. For example, the substance of a criminal law would tell us, as it did when Timothy McVeigh bombed the Murrah Federal Building in Oklahoma City, killing 168 people, that use of weapons of mass destruction and first-degree murder are punishable offenses and that the punishment for those offenses is imprisonment or death. Or the substance of a civil lawsuit might say that if one person causes the death of another he is monetarily liable to the survivors of the victim. Thus, in the most famous such suit in recent memory, the survivors of Nicole Simpson and Ronald Goldman sued O. J. Simpson for so-called wrongful death and were awarded millions of dollars. Those kinds of things make up the substance of law or the content of law and they are generally defined by legislatures, although you will also find lots of substantive law in constitutions, in executive orders, and coming out of judicial opinions.
Procedural law has to do with the operation of law, that is, with the manner in which law is applied. It is the rules of law itself. In a sense, law is rules, but these rules themselves are bound by other rules—rules of process. These rules of process make the law manageable by ensuring its efficient administration. Even more important, they supposedly ensure that the law itself will be applied evenly, consistently, and fairly to everybody. Thus, when Timothy McVeigh unsuccessfully appealed his conviction, he claimed that he had been denied due process of law by such procedural errors as jury misconduct and the exclusion of mitigating evidence at trial All law has elements of both substance and procedure. If, for instance, you look at the Constitution you can clearly see both the substance and procedure of law. As a matter of substance, the President has to be thirty five years old or older, he has to be a natural-born citizen, he is the chief executive officer, he is the commander-in-chief, and he is to be elected. As a matter of procedure, the Constitution tells us the manner in which he is to be elected, how he might be removed, and, in important respects, it tells him the manner in which he is to carry out some of his duties.
A second obvious cut we can make in talking about kinds of law is that between criminal and civil. Simply stated, criminal law deals with activities that have been forbidden by government—this can mean anything from a parking violation to murder. In the American judicial process, the violation of a criminal law is a violation not simply against another individual or group, but against government itself. Government acts as a proxy for the individual victim. This is why in criminal litigation you always see cases referred to as State v. Smith (or, in some states, as People v. Simpson or Commonwealth v. Woodward), or U.S. v. McVeigh. Thus, legally, Timothy McVeigh committed a crime against all of us, not just against the unfortunate victims in the Murrah Federal Building. In order to convict someone of a criminal act, the government needs to convince a judge or jury that the defendant is guilty beyond a reasonable doubt.
Civil law, on the other hand, generally governs relationships between individuals in the course of their private affairs. Hence, civil law deals with matters such as contracts, property, wills, divorces, and personal relationships. Unlike criminal prosecutions where the government is always an active participant, the government’s main interest in civil cases is to provide a forum (the courthouse) and process (the rules) for the peaceable resolution of disputes. Thus, theoretically, in civil cases the government does not care who wins a dispute as long as the dispute is settled peacefully. The government cares a lot in a criminal case because it is always a party to the case. But, unless the government is a party to a civil case (which it sometimes is), it theoretically it does not care about the outcome. In order to find a person liable in a civil case, the plaintiff or plaintiffs (the person or group bringing the complaint) need only convince a judge or jury that the defendant’s wrongdoing has been demonstrated by a preponderance of evidence. Divorce is part of civil law.
It is possible for a single action or set of facts to give rise to both a criminal and a civil action—and this is becoming increasingly prevalent. For just about every criminal action, there is also a civil remedy. For example, if you were to run a red light and go crashing into another’s car, the police, presumably, would issue a ticket based upon the criminal act of ignoring a traffic signal. Of course, there would still be the matter of your victim’s damaged car, and damage to property comes under the civil law of tort—on top of having to pay a hefty fine to the state, you could find yourself paying out-of pocket or insurance expenses to the person whose car you totaled. Or, take the more famous case of O. J. Simpson. Of course, he was prosecuted by the people of California for the criminal act of murder—an act of which he was acquitted. Subsequently, however, Mr. Simpson was sued by the survivors of his ex-wife and her friend for the civil act of wrongful death and for this act he was found liable. Clearly, the act of murder and the act of wrongful death are analogous—in nonlegal terms, they are the same thing. However, the former is a crime, prosecutable by the state, subject to proof beyond a reasonable doubt, and, if proven, punishable by imprisonment or death. The latter is a civil wrong, argued by individuals, subject to proof by a preponderance of evidence, and, if proven, punishable by compensation to the victims. At times, the criminal and civil processes may even be launched simultaneously.
The Civil Trial Process
When litigants do take their cases the full nine yards, the civil trial process looks, in many respects, like the criminal process—that is, the case may be brought before a jury or the bench (a judge sitting alone); the plaintiff presents her case first, followed by the defendant; and judgments are rendered after the case is concluded. There are, however, some important distinctions, a few of which are worth noting here. For example, those bringing civil suits—the plaintiffs—do not seek verdicts of guilty as the prosecutor would in a criminal case. Rather, civil plaintiffs urge the courts to find defendants liable for their wrongdoing. In turn, civil proceedings do not result in sentences, but rather, where the plaintiff is successful and the defendant is found liable, in remedies, usually assessed in the form of monetary damages.
As is the case in criminal cases, losing civil litigants have the right to appeal. Again, it is important to note that most potential civil grievances are probably never filed in court and of those that are, relatively few go to trial.
The decision to appeal is also related to the financial wherewithal of litigants. Appeals are quite expensive: generally speaking, lawyers must be paid, trial transcripts prepared, briefs printed, and filing fees paid. Unlike criminal appeals, where indigents are afforded these necessities free of charge, the burden of civil appellate costs is borne solely by the appellant, except in rare cases of legal pro bono work or the ever decreasing assistance of legal aid.
Legal Stipulations on Marriage
The traditional popular understandings and legal stipulations governing marriage in the United States have roots in Judeo-Christian religious views and church law. The English common law became the basis for the marriage laws of most U.S. states, and it reflected the tenets of marriage promulgated by the Anglican (and before it the Catholic) Church. When jurisdiction over marriage and children was transferred from church to common-law courts, for the most part “public law simply echoed what had been church doctrine.” Marriage was both an indissoluble and a hierarchical relationship. In the church’s view, marriage was a covenant, like God’s covenant with the Jews and later Christ’s covenant with the church (the community of the faithful). Christian marriage was thus an unbreakable bond. Marriage was to be lifelong, and marital faithfulness was to include monogamy.
In addition to being indissoluble, marriage was regarded as a hierarchical relationship, and one in which husband and wife played complementary, not similar, roles. The man was given authority as the head of household. Blackstone, the eighteenth-century legal authority, explained that since Genesis declared husband and wife to be “one flesh” in the eyes of God, they were to be “one person” in the eyes of the law, and that person was represented by the husband. This suspension of the wife’s legal personality was known as the doctrine of spousal unity, or “coverture.” Under coverture, a married woman could not sue or be sued unless her husband was party to the suit, could not sign contracts unless her husband joined her, and could not make a valid will unless he consented to its provisions. As a correlate of these powers and his role as head of the family, a husband was obligated to support his wife and children. And since he would be held responsible for her actions, a husband had a right to correct his wife physically, and to determine how and where their children would be raised. As late as 1945 a New Jersey court wrote:
The plaintiff husband is the master of his household. He is the managing
head, with control and power to preserve the family relation, to protect its
members and to guide their conduct. He has the obligation and responsibility of supporting, maintaining and protecting the family and the correlative
right to exclude intruders and unwanted visitors from the home despite the
whims of the wife.
Marriage was to be a structure in which spousal roles were distinct and complementary, with the husband acting as wage earner, protector, and public actor, the wife as protected, private homemaker.
The husband was expected to govern his household without either interference or help from the state. By and large police turned a blind eye to violence between spouses; in most jurisdictions wives could not prosecute their husbands for marital rape because the law assumed that by marrying, spouses gave blanket consent to sexual relations; and judges enforced obligations of support only if spouses separated, not in an ongoing marriage.
The result of all these stipulations was that when people married, they consented to enter a relationship the terms of which are set by the state. This is what it means to call marriage a “status” relationship. Consent was necessary to enter the married state, but the agreement to marry brought with it rights and duties that were not set by the partners but were considered to be intrinsic to the state of being married.
The unequal and restrictive provisions of marriage law became the object of reform efforts in the mid-nineteenth century. Reformers attacked laws that granted divorce only for a wife’s adultery, and not that of her husband, and added other wrongs, particularly physical cruelty and domestic violence, as grounds for dissolving the marital bond. Marriage, they said, must not make the home a “prison” for unhappy and wronged spouses, depriving them of essential personal liberty. Feminist reformers also invoked equality in their campaigns to pass married women’s property laws that would allow wives to hold property, sue and be sued, and enter contracts in their own names. By the end of the nineteenth century, a number of states had passed married women’s property statutes, freeing married women from many of the legal effects of coverture.
While this first wave of marriage law reform increased both the freedom to leave unsatisfactory marriages and equality between husbands and wives, many people were dissatisfied with the state of the law in the midtwentieth century. The grounds for divorce were restrictive, and law still treated married men and women differently. Several states granted divorce only for adultery. Many states imposed alimony only on husbands, a stipulation that assumed, and perhaps helped to perpetuate, women’s exclusion from the paid labor force. The age at which females could marry without their parents’ consent was often younger than that for males, suggesting that boys needed to stay in school longer or learn a trade before marrying and that girls did not. Custody laws varied widely but often contained a preference for mother’s custody, again assuming that the mother was and would in the future be the better caregiver.
In the mid-twentieth century, a variety of factors converged to spark a second wave of marriage law reform. Demographic changes since 1900 were dramatic: life expectancy for women was forty-eight years in 1900 and seventy-eight in 1980; increased life expectancy meant that most parents had years as “empty nesters” after their children left home, whereas in 1900 parents lived most of their lives with their children; and at midcentury women began childbearing at an older age and bore fewer children than had women in 1900. In the decades following World War II, economic changes led women, including married women and women with children, into the paid labor force in unprecedented numbers. This drew women out of the home for part of the day and gave them greater economic independence. The introduction of the birth control pill in the 1960s gave women more control over whether and when they would become pregnant. Greater ability to plan the timing of their children encouraged women to work outside the home and to think of “careers” rather than temporary jobs. All these changes predated the resurgence of feminism. Only beginning in the late 1960s and the 1970s did the ideology of equal rights developed by the black civil rights movement of the 1950s and 1960s help revitalize feminism, spurring the women’s movement to insist on equality between men and women as spouses as well as individuals. Also drawing on the legacy of civil rights and liberation struggles of the 1960s, in the 1970s gays and lesbians insisted on an end to legal discrimination against homosexuals and an end to the ban on same-sex marriage.
The dramatic transformation of divorce law that occurred between 1965 and 1974 took place independent of feminist influence. The adoption of no-fault divorce is seen as a “silent revolution,” a series of “radical changes in legal expectations about family life” that came about through “routine” (as contrasted with “conflictual”) public policy processes that avoided becoming the focus of media and public attention.
In the mid-1960s, lawyers in California began the push for no-fault divorce in large part to get rid of the subterfuge in many divorce proceedings that took place when couples tailored their stories to make them fit the legal requirements for divorce. Although California courts were lenient in granting divorce, to obtain a divorce a husband or wife had to prove that the other had committed a marital offense like adultery, cruelty, or desertion. In most cases, the wife was the plaintiff and usually charged her husband with “cruelty,” which could range from disparaging remarks to physical violence. “The testimony was often arranged and fake, disguising a mutual or negotiated decision to end the marriage. It was this element of dishonesty that provoked some of the proponents of change to seek a no-fault statute.”10 No-fault divorce enabled a spouse to obtain a divorce without proving wrongdoing by the other. The reformers’ goal was to eliminate the perjury that had become common and to decrease the level of conflict between divorcing spouses. Neither greater equality for women nor greater choice among alternative family forms was among the aims of those working to enact no-fault divorce laws.
Proponents of no-fault divorce did not intend or anticipate what many called the “demographic watershed” in U.S. families that the introduction of no-fault divorce brought about. In the wake of no-fault legislation, the divorce rate rose dramatically. The changes in marriage were reflected in the fact that in the last quarter of the twentieth century only one-quarter of U.S. households fit the supposed “norm” of husband wage earner and homemaker wife, living with their own biological or adopted children.
Dramatic though these demographics are, from a person seeking a divorce, it is more important to notice that no-fault divorce marked a sea change in the way people began to think about and conceptualize marriage. The idea that the marriage partners themselves, rather than the state, could decide to end their marriage was revolutionary. It affected thinking about both the permanence of marriage and the nature of the marriage relationship itself. It seemed as if the observation of Henry Maine, the nineteenth-century legal historian, that “the movement of the law in the nineteenth century is a movement from status to contract” was finally coming to be true of marriage.
Origin of Divorce
The divorce procedure is described—and approved of, in a qualified way—in Deuteronomy. The grounds for divorce are that a husband find “something shameful” in his wife. In the Middle Ages the grounds for divorce were tightened considerably, making divorces almost impossible to obtain. People could get divorces of bed and board—what we today would call a separation. They would live apart but could not remarry.
The tribulations of King Henry VIII led the English, in 1534, to allow individuals to appeal to the House of Lords for a divorce. This procedure was cumbersome, though, and it wasn’t until 1801 that a woman petitioned for a divorce. In 1857, England allowed courts to grant divorces, but this did not open the divorce floodgates: by 1886, British courts were granting only 400 divorces per year. (By way of contrast, in 1890, U.S. courts granted 33,461 divorces.)
In the United States, divorce has been around since the Puritans. In 1639, James Luxford’s wife asked for a divorce because Luxford already had a wife. The Puritans had what were, for the time, rather liberal divorce laws. Acceptable grounds for divorce included female adultery, male cruelty, bigamy, desertion, failure to provide, and impotence. Divorce hearings, besides deciding whether a divorce would be granted, determined which party to the divorce had been responsible for the breakup of the marriage. The guilty party was fined, whipped, or put in the stocks. Puritans were also likely to forbid remarriage by the guilty party. Such a person had, after all, shown incompetence in matters matrimonial and had no business trying to form another family.
In the early 1700s, Connecticut accepted the notion that when divorces happened, someone was to blame and should be punished, but added a unique twist: if both marriage partners were guilty, then no divorce would be granted. The implication is that in such cases, the appropriate punishment was for the partners to be forced to live with each other.
By the 1830s, divorce was easier to get in America than in Europe, with some states having more liberal divorce laws than others. In Virginia in 1827, acceptable grounds for divorce included adultery, cruelty, and just cause of bodily fear. In South Carolina, on the other hand, divorce was impossible until after the Civil War.
In the course of the nineteenth century, states kept adding to the list of acceptable grounds for divorce, sometimes with unintended results. Indiana accidentally turned itself into a divorce mecca when, in 1852, it allowed judges to grant divorces on grounds they found “proper.” This alone would have made Indiana a desirable place to get a divorce, but what really did the trick were three other features of Indiana law. First, Indiana had a minimal residency requirement. Indeed, your own affidavit was regarded as sufficient proof of residency, so that an unscrupulous person might establish his residency in Indiana without actually residing there. Second, Indiana law allowed notification of divorce proceedings to be served through publication. This meant that you could, by putting an ad in an Indiana newspaper—which people in other states and certainly in other countries would be unlikely to read—satisfy the law’s requirement that you inform all relevant parties of your intent to divorce. Third, under Indiana law, divorce decrees were irrevocable. In theory, a person could go to Indiana, declare residency, put an ad in a paper, and in short order be divorced. The spouse might not even find out about it until months later, and protests of unfairness would be met with the reply that the divorce was irrevocable. In 1873, Indiana tightened its divorce laws and thereby closed the Pandoras box it had inadvertently opened. This was Americas first encounter with “migratory divorces” on a grand scale.
Indiana is not the only place to gain infamy for its divorce practices. Thereafter, Utah gained a reputation as a divorce mill, followed by the Dakotas, Oklahoma Territory, and of course Nevada.
The No-Fault Divorce Revolution
After World War II, divorces became easier to obtain. By the mid1960s, several states included- “living apart” among the acceptable grounds for divorce and specified the amount of time that a couple must live apart. Finally, in the late 1960s, even this almost groundless ground was dropped when California became the first state—indeed, the first place in the Western world—to adopt “no-fault” divorce. The “grounds” for a divorce became “irreconcilable differences” causing the “irremediable breakdown” of a marriage. What proof was required that irreconcilable differences existed or that a marriage had broken down irremediably? None, other than the declared opinion of one party to the marriage that they did and it had. The most breathtakingly revolutionary feature of California’s nofault law: it allowed unilateral divorce. The wife of a man seeking a divorce could claim that the differences were not irreconcilable or that the marriage could be saved, but these claims counted for nothing in a court of law. If the husband wanted to go, there was nothing she could do to stop him. There was, in short, no right to remain married.
Unilateral divorce tips the balance of power in favor of the person who wants out of a marriage. From the legal point of view, their spouse’s behavior was irrelevant to determining whether or not a divorce should be granted; and if a divorce was granted, the spouse’s behavior was irrelevant to determining how the couple’s property should be divided and whether the wife should get alimony. Under no-fault divorce laws, marital property is divided equally, and alimony is granted on the basis of need rather than on the basis of marital guilt. No-fault divorce did accomplish one of its original goals: it made the divorce process less acrimonious. In a traditional divorce the two parties typically battled each other, dragging out their spouse’s every fault, both real and imagined, for all the world to see. They declared emotional war on each other, and the legal system aided and abetted their acts of war. Under no-fault, though, it didn’t matter what your spouse had done to you. The courts no longer wanted to hear about it.
California was not alone in making the move to no-fault. In 1971 the Supreme Court, in Boddie v. Connecticut, ruled that divorce is a citizen’s fundamental right. By 1980 all but two states had no-fault divorce laws. To be fair, not all these states went as far as California in liberalizing their divorce laws. By the mid-1980s about a quarter of the states still required mutual consent in divorces. States also differed in whether property divisions and alimony awards could be affected by “guilt” on the part of one of the married persons.
If you are seeking a no fault divorce in Utah, speak to an experienced Herriman Utah divorce lawyer. Utah law allows you to seek divorce on no fault grounds. Under this concept, a divorce may be granted on grounds such as incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The court examines the condition of the marriage rather than the question of whether either party is at fault. This type of proceeding eliminates the need for one party to accuse the other of a traditional ground for divorce.
By 1987, all fifty states had adopted no-fault divorce exclusively or as an option to traditional fault-grounded divorce. No-fault divorce has become a quick and inexpensive means of ending a marriage, especially when a couple has no children and relatively few property assets. In fact, the ability to end a marriage using no-fault procedures has led to criticism that divorce has become too easy to obtain, allowing couples to abandon a marriage at the first sign of marital discord. At least one state legislature has responded by allowing couples to set their own terms for divorce at the time of their marriage. Louisiana’s “covenant marriage” statute leaves the no-fault system in place for those choosing a standard arrangement, but allows individual couples to set the bar much higher if they wish.
In 1971, the Supreme Court came very close to declaring a right to divorce (Boddie v. Connecticut, 401 U.S. 371), striking down Connecticut’s inflexible fee structure as an impermissible denial of access to the poor to state proceedings required for obtaining a decree of dissolution. When a state provides no alternative but to utilize its forums, it cannot restrict admission on the basis of income.24 Note also that only the state can grant a divorce which releases the parties from the contract that binds them legally together. The divorce decree is another contract of sorts that also often comes with strings attached, such as alimony distributions, division of property and assets, child custody arrangements, and the like, which are enforceable by state power. Churches have no such authority, although some, like the Roman Catholic Church, refuse to recognize divorce.
Child custody decisions in American law have always been heard exclusively in state courts. (Indeed, federal courts, under a judicially declared exception to the otherwise applicable jurisdictional statutes, have long refused to hear family law cases, even when federal jurisdiction is otherwise present.) As a result, when the parties to a custody proceeding all are from the same state, only the law of that state applies. It is a different matter, however, when a judge is asked to enforce a custody order entered by the court of a sister state. At that point, the Full Faith and Credit Clause—and legislation adopted by Congress under the authority given to it by that clause—enter the picture.
The PKPA and the UCCJA (UCCJEA)
The Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. § 1738A, adopted by Congress in 1980, dealt with a very serious problem: conflicting custody orders entered by courts in different states. The problem generally arose when a parent, not satisfied with a custody/visitation order entered in one state would take the child to another state and seek a more favorable order there. The new court generally was in the unhappy parent’s home state, and often inclined to favor the local voter and taxpayer, giving that parent a strong “home court” advantage. Afterwards, armed with the new (and more favorable) custody order from a court in his domicile, the newly happy parent would refuse to give the child back, and the result would be a morass of litigation, crisscrossing contempt citations, and so forth.
Although custody disputes would seem to be the quintessential problem for state resolution, the federal government’s intervention in the area through the adoption of the PKPA was eminently proper for two reasons. First, the problem of interstate custody battles was one that was caused by the very existence of a federal system; no authority other than Congress existed to resolve conflicting custody orders issued by different states. Thus, it was appropriate for Congress to solve a “local” problem at the national level. Second, the problem was made worse by a flaw in the full faith and credit system itself. That flaw is that custody orders can always be modified prospectively; traditionally, therefore, they were never treated as “final” judgments for enforcement purposes. For that reason, courts could (and often did) disregard the custody orders of other states.
Congress solved the interstate custody problem by passing the PKPA pursuant to its implementing authority under the Full Faith and Credit Clause. The act, primarily designed to solve the problem caused by the lack of finality to custody orders, requires certain custody orders be treated as final; because those orders are now considered to be final they are entitled to recognition under the Full Faith and Credit Clause. And because the PKPA was enacted by Congress pursuant to its authority under the Full Faith and Credit Clause, the mandate of the PKPA became the law of the land under the Supremacy Clause. Thus, under the PKPA properly entered custody orders are entitled to the same respect in other states as would an order in any other type of case.
The important question for Congress in adopting the PKPA was to determine which orders required recognition; in doing so, Congress made a very wise decision. The PKPA largely tracks the provisions of the Uniform Child Custody Jurisdiction Act (“UCCJA”). First promulgated in 1968, and eventually adopted in every state, the UCCJA, provides, generally speaking, that the orders of only one court will control establishment and modification of child custody, thus defeating the “snatch and run” strategy employed by disgruntled parents under the prior custody regime. The UCCJA, in other words, established a regime sometimes referred to as the “one controlling order system.” That regime can be summarized briefly: When a court with proper subject matter jurisdiction enters a custody order, only that court—and no other—can change the order.
Because a finding of subject matter jurisdiction is so important under the UCCJA, the act establishes a hierarchy of jurisdictional possibilities for entering the original (and controlling) order. The first jurisdictional priority goes either to the state which is the child’s “home state” (the state where the child lived for six months before the custody petition was filed) or to a state that both has a “significant connection” with the child and the contestants for custody and is the location of substantial evidence relevant to the custody decision. Other possibilities are “residual jurisdiction,” which is available when no state meets any of the other criteria, and “temporary emergency jurisdiction,” which is exercised when the child is present within the state and is abandoned or threatened with mistreatment. The UCCJA also encourages judges in different states to consult with one another and to refuse to exercise jurisdiction if another court has begun proceedings or is otherwise better able to hear the case.
Finally, and most important, the UCCJA provides that any modifications to the order can be made only by the state that entered the order. No longer can there be multiple orders involving the child; instead, there is only “one outstanding order.” The combination of “one outstanding order” feature of the UCCJA with the full faith and credit mandate of the PKPA has largely ended the “snatch and run” abuse and has made interstate post-divorce family life more orderly and humane.
The PKPA illustrates the proper use by Congress of its constitutional power to enforce the Full Faith and Credit Clause. The act addresses a serious national problem created by our federal system, and it attempts to solve that problem by making custody orders final and entitled to recognition. By tracking the UCCJA, the PKPA largely federalizes the Uniform Act.
Thus, the UCCJA performed the state function of regulating family law, and the PKPA performed the federal function of regulating interstate enforcement of judicial orders. The two laws together have helped solve the problems presented by parental “kidnapping” across stale lines.
The UCCJA was superceded in 1997 by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The new law was designed better to harmonize the stale law of custody with the requirements of the PKPA. The UCCJEA, however, does not disturb the basic outline of the UCCJA, especially its one outstanding order requirement.
Child Custody Herriman Utah
The federal and uniform acts do not eliminate all interstate custody problems. One vexing issue that has not yet been resolved is whether the state entering the custody order must have personal jurisdiction over both spouses.
At one time, that was not a problem. Parents did not migrate with children from one state to another, so custody was a purely local concern. When the rare interstate case did arise, the continued indulgence of the historical fiction that the dispute was one in rem (with the child as the res) meant that a court with the child before it could adjudicate all interests in the res. That meant that the court did not need personal jurisdiction over both spouses in order to render a constitutionally permissible decree.
As our nation became more migratory, however, fairness questions arose over that treatment. Why should a person be forced to come to a distant and perhaps hostile forum in order to protect his rights as a parent? Moreover, by coming to the forum, the absent parent exposed himself to the possibility that the forum would assert personal jurisdiction over him, and thus acquire power to enter child or spousal support orders. This fundamental dilemma—stay out of the forum and lose the child; appear and lose your wallet—mirrors the dilemma faced by the stay-at-home spouse following the decision in Williams I. That dilemma, of course, was resolved by the invention of the concept of the “divisible divorce,” which preserved the fiction of the res (the marriage) thus permitting the ex parte divorce, while still protecting the financial interests of the absent spouse with the personal jurisdiction requirement. A similar concept, which might be styled “divisible custody,” has evolved in the custody area.
Divisible custody works this way. Custody orders can be entered by a court at the situs of the res—remember that the child is the res—that is, the child’s “home state,” but financial decrees—child support—can be entered only by a court with personal jurisdiction over the putative support obligor. Necessity is the justification for permitting a court without personal jurisdiction to issue a custody order, and the argument is compelling. If the rule were otherwise, a parent who wished to deny effect to a custody order would simply avoid all contact with the forum. As a result, if personal jurisdiction—over both parents—were required, often no court would be able to enter a valid custody order. And that would be a disaster for the child who badly needs stability.
It is not surprising, therefore, that neither the PKPA nor the UCCJA requires personal jurisdiction over both parents as a condition to the entry of a valid order. (In an emergency, any state has the power to issue a temporary order.) Moreover, neither case law nor the commentary of academics shows much enthusiasm for requiring personal jurisdiction over the absent parent. There is only one flaw in this rosy scenario: It is not clear whether the Supreme Court agrees. Twice the Court has had the absent parent issue on its plate, and twice it has punted on the issue.
The first opportunity came in the case of May v. Anderson (1953) in which a Wisconsin court entered an ex parte order giving custody to the father. The father then took the order to Ohio where the children were living with their mother. The Ohio courts gave full faith and credit to the Wisconsin order, and the mother appealed. The case eventually made it all the way to the Supreme Court; that court reversed.
Unfortunately, the holding in May is quite murky. The majority opinion by Justice Harold Burton can be read as saying that custody rights are like other property “rights” which can be extinguished only by a court with personal jurisdiction over the defendant. On the other hand, the opinion may simply have said that the Ohio court could, but was not required to, recognize the Wisconsin decree; plausible readings of Justice Burton’s majority opinion can support either position. Even worse, the concurring and dissenting opinions disagreed as to what the majority had really held in May. In short, Justice Burton’s opinion in May is a real mess.
Thus, with respect to the first possibility—that custody is like any other property right—Justice Burton stated the issue to be whether the Wisconsin court could eliminate the mother’s right to custody, “without having jurisdiction over her in personam.” Moreover, Burton closed the opinion by noting that “[r]ights far more precious to [the mother] than property rights will be cut off if she is to be bound by the Wisconsin award of custody.”
The second possibility—discretionary recognition—derives support from the failure of the majority to mention the Due Process Clause, the source of whatever rights the mother might have had. Further, Justice Burton framed the issue in terms of whether Wisconsin should have the right, “as against Ohio,” to decide the mother’s custody rights. That is, the majority opinion could have been treating the question as one of states’ rights rather than one involving individual rights. Justice Frankfurter’s concurrence also supports the second interpretation, staling explicitly that personal jurisdiction over both parents is not necessary for a court to render an enforceable decree in a custody case.
A generation after May, the Supreme Court had an opportunity to clarify the situation. Once again it blew the analysis. Shaffer v. Heitner (1977) was a major opinion on the relation between the Due Process Clause and personal jurisdiction, the first issued by the Court in twenty years. The holding in Shaffer, that the personal jurisdiction test (“minimum contacts/fairplay and substantial justice”) also applies to attachment jurisdiction has little relevance to custody. Nevertheless, the Shaffer Court made an effort to explain the effect of its holdings on other problem areas of jurisdiction. Those efforts, although certainly dicta and made in footnotes, have been taken seriously by courts and commentators.
In footnote 30 to the Shaffer opinion, the Court observed: “We do not suggest that jurisdictional doctrines other than those discussed in text, such as the particularized rules governing adjudications of status, are inconsistent with the standard of fairness.”33 In other words, Shaffer does not affect “status” determinations such as those made in custody cases, and, therefore, in rem treatment of custody proceedings can survive the holding, although the opinion had invalidated other uses of the in rem fiction in jurisdictional cases. That argument is strengthened by the fact that divorce is still treated as an in rem action, suggesting that the concept of status has not lost all of its utility in cases involving family law. Further, the Court did not refer to May at all, a lacuna perhaps suggesting that Shaffer does not jeopardize the in rem treatment of custody proceedings.
A final point of persuasion on this issue can be found in the fact that Congress, when it adopted the PKPA, agreed that a valid custody order-—one entitled to recognition throughout the nation—does not require jurisdiction over both parties. And a large majority, but not all, of the state courts that have wrestled with the issue have held that custody decisions may be made by a court lacking personal jurisdiction over both parents.
Finally, the state where the child has a real home—the “home state”—has a strong interest as a sovereign in looking out for the best interests of one of its children, the basic test in all custody litigation. When that interest is coupled with the practical need to have at least one court where the custody issue can be authoritatively resolved, we can prophesy that the Supreme Court, when it gets another chance to address the issue, will hold that the forum where the child and one parent are located can resolve a custody dispute without personal jurisdiction over the absent parent.
Child Support in Herriman Utah
Child and spousal support matters, like child custody, historically have been decided under state law. The Full Faith and Credit Clause, however, does play a role in the enforcement of interstate support orders. The law of support follows closely the pattern established with custody orders—a uniform act adopted by the states, which has been given stronger teeth by a federal statute adopted pursuant to congressional authority under the Full Faith and Credit Clause.
The success of the PKPA in the area of interstate custody encouraged Congress to seek statutory solutions for interstate child support orders. As a result, Congress in recent years has passed several major pieces of legislation dealing with interstate enforcement of child support orders.
The first of these laws, known as the “Bradley Amendment,” adopted in 1986, brought state child support orders under the Full Faith and Credit Clause. Before the Bradley Amendment took effect, child support orders (like custody orders before the adoption of the PKPA) were generally held not to be entitled to full faith and credit because they were modifiable, according to state law, both prospectively and retrospectively, and thus were not considered to be “final judgments.” The result was that if the noncustodial parent had fallen $1,000 behind on her payments, those arrearages had to be sued upon in another action and reduced to a judgment in order to be sufficiently final to be entitled to preclusive effect in another state. The Bradley amendment changed that cumbersome and difficult process by requiring each state to adopt legislation making child support arrearages nonmodifiable. A state that did not adopt that legislation could have lost enormous sums of federal money. Thus, any time the obligor parent falls behind on her support payments, she owes a sum certain to the custodial parent, a sum, which, because of its certainty, can then become the subject of an immediate enforcement action. Although Congress did not use its Full Faith and Credit Clause power when it adopted the Bradley Amendment, the law fits within the spirit of the Clause in making enforcement of support orders across state lines easier to obtain.
More recently, in the Full Faith and Credit for Child Support Orders Act (the Act has a very uneuphonious acronym, “FFCSOA,” usually pronounced fic-sóa), Congress placed the Full Faith and Credit Clause squarely behind the enforcement of interstate child support orders. FFCSOA closely resembles—and deliberately so—the enforcement model established by the PKPA. That is, federal law now mandates enforcement of orders entered pursuant to a Uniform Act. That act in the case of child support is the Uniform Interstate Family Support Act (“UIFSA”). UIFSA follows the “one-child, one-order” concept pioneered in the custody field by the UCCJA, and described in the proceeding section.
The basic idea behind UIFSA is that only one court can have the subject matter jurisdiction needed to enter a valid support order; that court is the one in the “home state” of the child, which UIFSA defines as the place where the child lived for the six months before an order was sought. Once home state jurisdiction has been established, an order from a court of that state must be respected: Only the court that entered the support order can modify that order, unless either that court has lost jurisdiction because all of the persons involved, both parents and children, have left the state, or the parties have agreed to locate the order elsewhere.
FFCSOA requires the recognition by other courts of an order properly entered under UIFSA. Because the latter served as the basis for the substantive provisions of the former, the practical effect of FFCSOA is to constitutionalize the “one-child, one-controlling-order” regime of UIFSA for purposes of entering a support order entitled to recognition.
FFCSOA, like the PKPA, is a perfectly proper use of the full faith and credit powers given to Congress. First, interstate enforcement of support orders is a major national problem, one that only Congress has the power effectively to resolve. Second, uncertainty about multiple orders had made the enforcement of any order problematic. Third, Congressional intervention did not require widespread involvement with inherently local activities; the statute is expressly limited to enforcement of orders across state lines. Thus, FFCSOA provides a textbook illustration of the proper use of federal regulatory authority in an area normally reserved for state authority. But that, of course, was what the Full Faith and Credit Clause was all about.
Although the law and practice have come a long way in the past two decades, a major obstacle stands in the way of further progress. That obstacle is the Supreme Court’s opinion in Kulko v. Superior Court (1978). In that case, a New York family had entered into a custody agreement, which gave custody of the two children to their father. Later, with his permission, the children moved to California to live with their mother, and she later obtained a California support order. When she sought to enforce the order, the husband resisted, on the ground that the California court lacked personal jurisdiction over him.
The Supreme Court agreed. Justice Marshall’s majority opinion applied the well-known “minimum contacts” test concerning personal jurisdiction to the question and found that the test had not been satisfied. In so holding, Justice Marshall made two troubling observations: He first noted that the litigation arose “not from the defendant’s commercial transactions in interstate commerce, but rather from his personal, domestic relations.” It is difficult to understand the relevance of this attempted distinction. After all, if the children are not properly supported in California they will suffer demonstrable—and foreseeable—harm in that state. When viewed in that light, it is easy to see how the facts of Kulko could have been found to satisfy the minimum contacts test. Moreover, the fact that the case involved a “domestic relations” problem rather than a “commercial transaction” argues in favor of finding personal jurisdiction. If the type of problem matters, as the majority suggests, than it is hard to understand why commercial matters are more important than domestic ones.
The second point emphasized by Justice Marshall was that California had not “attempted to assert any particularized interest in trying [child support] cases in its courts.” Here, Justice Marshall apparently was referring to the fact that California did not have a long-arm statute that expressly provided for specific jurisdiction over support obligors. Although many states have so-called “enumerated” long-arm statutes, which specify the types of problems over which jurisdiction may be asserted, California had a general long-arm statute, which asserts jurisdiction over any matter that the constitution permits. It is extremely difficult to understand why California should be penalized for having a broader long-arm statute than most slates.
Finally, the Court referred to the fact that the then-existing Uniform Act dealing with interstate child support (“URESA”) provided an alternative method for obtaining child support from an out-of-state obligor. That reference makes no sense. URESA was such a cumbersome and ineffective method of obtaining relief that it eventually was discarded in favor of UIFSA, discussed above. It can only be assumed that the Court was thinking that it did not have to address more general issues of long-arm jurisdiction when the petitioner would suffer no harm as the result of the decision. If that was indeed the Court’s thinking it was dead wrong; URESA was a poor substitute for obtaining relief directly through longarm jurisdiction.
The Kulko decision has met with heavy resistance in the states. The drafters of UIFSA expressly included a provision for asserting jurisdiction over an outof-state obligor that is flatly inconsistent with Kulko. Section 5 of UIFSA provides that a court may exercise jurisdiction in a support matter if “the child resides in this State as a result of the Acts or directives of the defendant.”
Obviously, it is widely believed that Kulko is both bad policy and likely to be overruled when the Court gets the question again. Both suppositions are correct. Kulko certainly is bad policy; it is hard to understand why failure to support a child does not permit the child’s state of residence to exercise jurisdiction over the obligor in order to protect the child (as well as the treasury of the state, which will be forced to support the child if the parents do not). Surely that exercise of jurisdiction satisfies the minimum fairness test, which is the basis of all modern exercises of long-arm jurisdiction.
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