A wife went from her Massachusetts home to Florida and sued for
divorce in a court of that State a few days after the expiration of
the 90-day period of residence required by Florida law. Her husband
appeared generally and denied all the allegations in the complaint,
including that of the wife's Florida residence. At the hearing, the
wife introduced evidence to establish her Florida residence, and
the husband, though present in person and by counsel, did not
cross-examine or proffer evidence in rebuttal. The court found that
the wife was a bona fide
resident of Florida, and granted
her a divorce. The husband did not appeal. The wife married again,
and subsequently returned to Massachusetts. Her former husband then
instituted proceedings there collaterally attacking the Florida
decree. Although there was no indication that the decree would have
been subject to such an attack under Florida law, the Massachusetts
court found that the wife was never domiciled in Florida, and held
the divorce void.
the Massachusetts judgment denied full faith and
credit to the Florida judgment, contrary to Art. IV, § 1 of the
Constitution and the Act of May 26, 1790, 28 U.S.C. § 687. Pp.
334 U. S.
(a) The husband had his day in court in Florida with respect to
every issue involved in the litigation, and there is nothing in the
concept of due process which demands that he be given a second
opportunity to litigate the existence of the jurisdictional facts.
P. 334 U. S.
(b) The requirements of full faith and credit bar a defendant
from collaterally attacking a divorce decree on jurisdictional
grounds in the courts of a sister State where there has been
participation by the defendant in the divorce proceedings, where
the defendant has been accorded full opportunity to contest the
jurisdictional issues, and where the decree is not susceptible to
such collateral attack in the courts of the State which rendered
the decree. Davis v. Davis, 305 U. S.
, followed. Williams v. North Carolina,
325 U. S. 226
distinguished. Pp. 334 U. S.
(c) Insofar as the rule of Andrews v. Andrews,
188 U. S. 14
be said to be inconsistent with the judgment herein announced,
Page 334 U. S. 344
it must be regarded as having been superseded by subsequent
decisions of this Court. Pp. 334 U. S.
(d) If the application of the full faith and credit clause to
cases of this nature requires that local policy be subordinated,
that is a part of the price of our federal system. That vital
interests are involved in divorce litigation makes it a matter of
greater, rather than lesser, importance that, under the
circumstances of this case, the litigation end in the courts of the
State in which the decree was rendered. Pp. 334 U. S.
320 Mass. 351, 69 N.E.2d 801, reversed.
After a wife had obtained a divorce in Florida, and had returned
to her former home in Massachusetts, a probate court in
Massachusetts found that she was never domiciled in Florida, and
held the divorce void. The Supreme Judicial Court of Massachusetts
affirmed. 320 Mass. 351, 69 N.E.2d 801. This Court granted
certiorari. 330 U.S. 814. Reversed,
p. 334 U. S.
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
We granted certiorari in this case and in Coe v. Coe,
p. 378, to consider the contention of petitioners that
Massachusetts has failed to accord full faith and credit to decrees
of divorce rendered by courts of sister States. [Footnote 1
Page 334 U. S. 345
Petitioner Margaret E. Sherrer and the respondent, Edward C.
Sherrer, were married in New Jersey in 1930, and from 1932 until
April 3, 1944, lived together in Monterey, Massachusetts. Following
a long period of marital discord, petitioner, accompanied by the
two children of the marriage, left Massachusetts on the latter
date, ostensibly for the purpose of spending a vacation in the
Florida. Shortly after her arrival in Florida, however, petitioner
informed her husband that she did not intend to return to him.
Petitioner obtained housing accommodations in Florida, placed her
older child in school, and secured employment for herself.
On July 6, 1944, a bill of complaint for divorce was filed at
petitioner's direction in the Circuit Court of the Sixth Judicial
Circuit of the Florida. [Footnote
] The bill alleged extreme cruelty as grounds for divorce and
also alleged that petitioner was a "bona fide
the Florida." [Footnote 3
respondent received notice by mail of the pendency of the divorce
proceedings. He retained Florida counsel, who entered a general
appearance and filed an answer denying the allegations of
Page 334 U. S. 346
including the allegation as to petitioner's Florida residence.
On November 14, 1944, hearings were held in the divorce
proceedings. Respondent appeared personally to testify with respect
to a stipulation entered into by the parties relating to the
custody of the children. [Footnote
] Throughout the entire proceedings, respondent was
represented by counsel. [Footnote
] Petitioner introduced evidence to establish her Florida
residence, and testified generally to the allegations of her
complaint. Counsel for respondent failed to cross-examine or to
introduce evidence in rebuttal.
The Florida court, on November 29, 1944, entered a decree of
divorce after specifically finding
"that petitioner is a bona fide
resident of the
Florida, and that this court has jurisdiction of the parties and
the subject matter in said cause. . . ."
Respondent failed to challenge the decree by appeal to the
Florida Supreme Court. [Footnote
Page 334 U. S. 347
On December 1, 1944, petitioner was married in Florida to one
Henry A. Phelps, whom petitioner had known while both were residing
in Massachusetts and who had come to Florida shortly after
petitioner's arrival in that State. Phelps and petitioner lived
together as husband and wife in Florida, where they were both
employed, until February 5, 1945, when they returned to
In June, 1945, respondent instituted an action in the Probate
Court of Berkshire County, Massachusetts, which has given rise to
the issues of this case. Respondent alleged that he is the lawful
husband of petitioner, that the Florida decree of divorce is
invalid, and that petitioner's subsequent marriage is void.
Respondent prayed that he might be permitted to convey his real
estate as if he were sole, and that the court declare that he was
living apart from his wife for justifiable cause. [Footnote 8
] Petitioner joined issue on
In the proceedings which followed, petitioner gave testimony in
defense of the validity of the Florida divorce decree. [Footnote 9
] The Probate Court, however,
resolved the issues of fact adversely to petitioner's contentions,
Page 334 U. S. 348
she was never domiciled in Florida, and granted respondent the
relief he had requested. The Supreme Judicial Court of
Massachusetts affirmed the decree on the grounds that it was
supported by the evidence and that the requirements of full faith
and credit did not preclude the Massachusetts courts from
reexamining the finding of domicile made by the Florida court.
At the outset, it should be observed that the proceedings in the
Florida court prior to the entry of the decree of divorce were in
no way inconsistent with the requirements of procedural due
process. We do not understand respondent to urge the contrary. The
respondent personally appeared in the Florida proceedings. Through
his attorney, he filed pleadings denying the substantial
allegations of petitioner's complaint. It is not suggested that his
rights to introduce evidence and otherwise to conduct his defense
were in any degree impaired; nor is it suggested that there was not
available to him the right to seek review of the decree by appeal
to the Florida Supreme Court. It is clear that respondent was
afforded his day in court with respect to every issue involved in
the litigation, including the jurisdictional issue of petitioner's
domicile. Under such circumstances, there is nothing in the concept
of due process which demands that a defendant be afforded a second
opportunity to litigate the existence of jurisdictional facts.
Chicago Life Insurance Co. v. Cherry, 244 U. S.
; Baldwin v. Iowa State Traveling Men's
Association, 283 U. S. 522
It should also be observed that there has been no suggestion
that, under the law of Florida, the decree of divorce in question
is in any respect invalid, or could successfully be subjected to
the type of attack permitted by the Massachusetts court. The
implicit assumption underlying the position taken by respondent and
the Massachusetts court is that this case involves a decree of
Page 334 U. S. 349
and final in the State which rendered it, and we so assume.
That the jurisdiction of the Florida court to enter a valid
decree of divorce was dependent upon petitioner's domicile in that
State is not disputed. [Footnote
] This requirement was recognized by the Florida court which
rendered the divorce decree, and the principle has been given
frequent application in decisions of the State Supreme Court.
] But whether or
not petitioner was domiciled in Florida at the time the divorce was
granted was a matter to be resolved by judicial determination.
Here, unlike the situation presented in Williams v. North
Carolina, 325 U. S. 226
finding of the requisite jurisdictional facts was made in
proceedings in which the defendant appeared and participated. The
question with which we are confronted, therefore, is whether such a
finding, made under the circumstances presented by this case, may,
consistent with the requirements of full faith and credit, be
subjected to collateral attack in the courts of a sister State in a
suit brought by the defendant in the original proceedings.
The question of what effect is to be given to an adjudication by
a court that it possesses requisite jurisdiction in a case, where
the judgment of that court is subsequently
Page 334 U. S. 350
subjected to collateral attack on jurisdictional grounds, has
been given frequent consideration by this Court over a period of
many years. Insofar as cases originating in the federal courts are
concerned, the rule has evolved that the doctrine of res
applies to adjudications relating either to
jurisdiction of the person or of the subject matter where such
adjudications have been made in proceedings in which those
questions were in issue and in which the parties were given full
opportunity to litigate. [Footnote 14
] The reasons for this doctrine have
frequently been stated. Thus, in Stoll v. Gottlieb,
305 U. S. 165
305 U. S. 172
it was said:
"Courts to determine the rights of parties are an integral part
of our system of government. It is just as important that there
should be a place to end as that there should be a place to begin
litigation. After a party has his day in court, with opportunity to
present his evidence and his view of the law, a collateral attack
upon the decision as to jurisdiction there rendered merely retries
the issue previously determined. There is no reason to expect that
the second decision will be more satisfactory than the first."
This Court has also held that the doctrine of res
must be applied to questions of jurisdiction in cases
arising in state courts involving the application of the full faith
and credit clause where, under the law of the state in which the
original judgment was rendered, such adjudications are not
susceptible to collateral attack. [Footnote 15
Page 334 U. S. 351
In Davis v. Davis, 305 U. S. 32
courts of the District of Columbia had refused to give effect to a
decree of absolute divorce rendered in Virginia, on the ground that
the Virginia court had lacked jurisdiction despite the fact that
the defendant had appeared in the Virginia proceedings and had
fully litigated the issue of the plaintiff's domicile. This Court
held that, in failing to give recognition to the Virginia decree,
the courts of the District had failed to accord the full faith and
credit required by the Constitution. During the course of the
opinion, this Court stated:
"As to petitioner's domicil for divorce and his standing to
invoke jurisdiction of the Virginia court, its finding that he was
a bona fide
resident of that State for the required time
is binding upon respondent in the courts of the District. She may
not say that he was not entitled to sue for divorce in the state
court, for she appeared there and, by plea, put in issue his
allegation as to domicil, introduced evidence to show it false,
took exceptions to the commissioner's report, and sought to have
the court sustain them and uphold her plea. Plainly, the
determination of the decree upon that point is effective for all
purposes in this litigation. [Footnote 16
We believe that the decision of this Court in the Davis
case and those in related situations [Footnote 17
] are clearly indicative of the result to be
reached here. Those cases stand for the proposition that the
requirements of full faith and credit bar a defendant from
collaterally attacking a divorce decree on jurisdictional grounds
in the courts of a sister State where there has been participation
by the defendant in the divorce proceedings, where the defendant
has been accorded full opportunity to contest the jurisdictional
issues, and where the decree is not susceptible
Page 334 U. S. 352
to such collateral attack in the courts of the State which
rendered the decree. [Footnote
Applying these principles to this case, we hold that the
Massachusetts courts erred in permitting the Florida divorce decree
to be subjected to attack on the ground that petitioner was not
domiciled in Florida at the time the decree was entered. Respondent
participated in the Florida proceedings by entering a general
appearance, filing pleadings placing in issue the very matters he
sought subsequently to contest in the Massachusetts courts,
personally appearing before the Florida court and giving testimony
in the case, and by retaining attorneys who represented him
throughout the entire proceedings. It has not been contended that
respondent was given less than a full opportunity to contest the
issue of petitioner's domicile or any other issue relevant to the
litigation. There is nothing to indicate that the Florida court
would not have evaluated fairly and in good faith all relevant
evidence submitted to it. Respondent does not even contend that, on
the basis of the evidence introduced in the Florida proceedings,
that court reached an erroneous result on the issue of petitioner's
domicile. If respondent failed to take advantage of the
opportunities afforded him, the responsibility is his own. We do
not believe that the dereliction of a defendant under such
circumstances should be permitted to provide a basis for subsequent
attack in the courts of a sister State on a decree valid in the
State in which it was rendered.
It is suggested, however, that Andrews v. Andrews,
188 U. S. 14
militates against the result we have reached. In that case, a
husband who had been domiciled in Massachusetts instituted divorce
Page 334 U. S. 353
a South Dakota court after having satisfied the residence
requirements of that State. The wife appeared by counsel and filed
pleadings challenging the husband's South Dakota domicile. Before
the decree of divorce was granted, however, the wife, pursuant to a
consent agreement between the parties, withdrew her appearance from
the proceedings. Following the entry of the decree, the husband
returned to Massachusetts and subsequently remarried. After his
death, a contest developed between his first and second wives as to
the administration of the husband's estate. The Massachusetts court
concluded that the South Dakota decree of divorce was void on the
ground that the husband had not been domiciled in that State, and
that, under the applicable statutes of Massachusetts, the
Massachusetts courts were not required to give recognition to such
a decree. This Court affirmed on writ of error by a divided vote.
On its facts, the Andrews
case presents variations from
the present situation. [Footnote
] But, insofar as the rule of that case may be said to be
inconsistent with judgment herein announced, it must be regarded as
having been superseded by subsequent decisions of this Court. The
case was decided prior to the considerable modern
development of the law with respect to finality of jurisdictional
findings. [Footnote 21
of the decisions upon which the majority of the Court in that case
placed primary reliance, Wisconsin v. Pelican Insurance
Co., 127 U. S. 265
was, insofar as pertinent, overruled in Milwaukee County v. M.
E. White Co., 296 U. S. 268
case therefore may not be regarded as
determinative of the issues before us.
Page 334 U. S. 354
It is urged further, however, that, because we are dealing with
litigation involving the dissolution of the marital relation, a
different result is demanded from that which might properly be
reached if this case were concerned with other types of litigation.
It is pointed out that, under the Constitution, the regulation and
control of marital and family relationships are reserved to the
States. It is urged, and properly so, that the regulation of the
incidents of the marital relation involves the exercise by the
States of powers of the most vital importance. Finally, it is
contended that a recognition of the importance to the States of
such powers demands that the requirements of full faith and credit
be viewed in such a light as to permit an attack upon a divorce
decree granted by a court of a sister State under the circumstances
of this case even where the attack is initiated in a suit brought
by the defendant in the original proceedings. [Footnote 22
But the recognition of the importance of a State's power to
determine the incidents of basic social relationships into which
its domiciliaries enter does not resolve the issues of this case.
This is not a situation in which a State has merely sought to exert
such power over a domiciliary. This is, rather, a case involving
inconsistent assertions of power by courts of two States of the
Federal Union, and thus presents considerations which go beyond the
interests of local policy, however vital. In resolving the issues
here presented, we do not conceive it to be a part of our function
to weigh the relative merits of the policies of Florida and
Massachusetts with respect to divorce and related matters. Nor do
we understand the decisions of this Court to support the
proposition that the obligation imposed by Article IV, § 1 of the
Constitution and the Act of Congress passed thereunder amounts to
something less than the duty to accord full faith and credit to
Page 334 U. S. 355
divorce entered by courts of sister States. [Footnote 23
] The full faith and credit
clause is one of the provisions incorporated into the Constitution
by its framers for the purpose of transforming an aggregation of
independent, sovereign States into a nation. [Footnote 24
] If, in its application, local
policy must at times be required to give way, such "is part of the
price of our federal system." Williams v. North Carolina,
317 U. S. 287
317 U. S. 302
This is not to say that in no case may an area be recognized in
which reasonable accommodations of interest may properly be made.
But, as this Court has heretofore made clear, that area is of
limited extent. [Footnote
] We believe that, in permitting an attack on the Florida
divorce decree which again put in issue petitioner's Florida
domicile, and in refusing to recognize the validity of that decree,
the Massachusetts courts have asserted a power which cannot be
reconciled with the requirements of due faith and credit. We
believe that assurances that such a power will be exercised
sparingly and wisely render it no less repugnant to the
It is one thing to recognize as permissible the judicial
reexamination of findings of jurisdictional fact where such
Page 334 U. S. 356
findings have been made by a court of a sister State which has
entered a divorce decree in ex parte
] It is quite
another thing to hold that the vital rights and interests involved
in divorce litigation may be held in suspense pending the scrutiny
by courts of sister States of findings of jurisdictional fact made
by a competent court in proceedings conducted in a manner
consistent with the highest requirements of due process, and in
which the defendant has participated. We do not conceive it to be
in accord with the purposes of the full faith and credit
requirement to hold that a judgment rendered under the
circumstances of this case may be required to run the gauntlet of
such collateral attack in the courts of sister States before its
validity outside of the State which rendered it is established or
rejected. That vital interests are involved in divorce litigation
indicates to us that it is a matter of greater, rather than lesser,
importance that there should be a place to end such litigation.
] And, where a
decree of divorce is rendered by a competent court under the
circumstances of this case, the obligation of full faith and credit
requires that such litigation should end in the courts of the State
in which the judgment was rendered.
U.S.Const. Art. IV, § 1, provides:
"Full Faith and Credit shall be given in each State to the
public Acts, Records, and Judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the
The Act of May 26, 1790, 1 Stat. 122, as amended, R.S. § 905, 28
U.S.C. § 687, provides in part:
". . . And the said records and judicial proceedings . . . shall
have such faith and credit given to them in every court within the
United States as they have by law or usage in the courts of the
State from which they are taken."
By statute, the Circuit Courts, as courts of equity, have
jurisdiction of divorce causes. Florida Stat.Ann. § 65.01.
Meloche v. Meloche,
101 Fla. 659, 662, 133 So. 339, 340,
140 So. 319.
Section 65.02 of Florida Stat.Ann. provides:
"In order to obtain a divorce, the complainant must have resided
ninety days in the Florida before the filing of the bill of
The Florida courts have construed the statutory requirement of
residence to be that of domicile. Respondent does not contend, nor
do we find any evidence, that the requirements of "domicile," as
defined by the Florida cases, are other than those generally
applied, or differ from the tests employed by the Massachusetts
courts. Wade v. Wade,
93 Fla. 1004, 113 So. 374; Evans
141 Fla. 860, 194 So. 215; Fowler v.
156 Fla. 316, 22 So. 2d 817.
The first allegation of respondent's answer stated:
"That the Plaintiff is not a bona fide
of the Florida, and has not been such continuously for more than
the ninety days immediately preceding the filing of the bill of
complaint. That, on or about April 3, 1944, while the parties were
living together as residents of Monterey, Massachusetts, the
Plaintiff came to Florida with the children of the parties for a
visit, and without any expressed intention of establishing a
separate residence from the Defendant, and has remained in Florida
ever since, but without any intention of becoming a bona
resident of Florida."
The agreement provided that respondent should have custody of
the children during the school term of each year, and that
petitioner should be given custody throughout the rest of the year,
subject to the right of both parents to visit at reasonable times.
Before the final decree of divorce was entered, respondent returned
to Massachusetts, accompanied by the two children.
It is said that, throughout most of the proceedings, respondent
did not appear in the courtroom, but remained "in a side room."
Appeals lie to the Florida Supreme Court from final decrees of
divorce. Fla.Const. Art. V, § 5. And see, e.g., Homan v.
144 Fla. 371, 198 So. 20.
The action was brought pursuant to the provisions of
Mass.Gen.Laws (Ter. Ed.) c. 209, § 36.
Petitioner testified that. for many years prior to her departure
for Florida, respondent had made frequent allusions to the fact
that petitioner's mother had been committed to a mental
institution. and had suggested that petitioner was revealing the
same traits of mental instability. .Petitioner testified that. as a
result of these remarks and other acts of cruelty, her health had
been undermined. and that it had therefore become necessary for her
to leave respondent. In order to insure her departure, she had
represented that her stay in Florida was to be only temporary, but,
from the outset, she had in fact intended not to return. Petitioner
testified further that, both before and after the Florida decree of
divorce had been entered, she had intended to reside permanently in
Florida, and that she and Phelps had returned to Massachusetts only
after receiving a letter stating that Phelps' father was in poor
320 Mass. 351, 69 N.E.2d 801.
See Williams v. North Carolina, 325 U.
, 325 U. S.
-234; cf. Treinies v. Sunshine Mining Co.,
308 U. S. 66
308 U. S. 78
note 26. No Florida case has been called to our attention involving
a collateral attack on a divorce decree questioning the domicile of
the parties, and hence the jurisdiction of the court which entered
the decree, where both parties appeared in the divorce proceedings.
See generally Everette v. Petteway,
131 Fla. 516, 528,
529, 179 So. 666, 671, 672; State ex rel. Goodrich Co. v.
140 Fla. 500, 505, 192 So. 175, 177. But cf.
Chisholm v. Chisholm,
1929, 98 Fla. 1196, 125 So. 694; Dye
114 Fla. 866, 154 So. 847, involving attacks on
jurisdictional findings made in ex parte
Bell v. Bell, 181 U. S. 175
See note 3
Baldwin v. Iowa State Traveling Men's Association,
283 U. S. 522
Stoll v. Gottlieb, 305 U. S. 165
Chicot County Drainage District v. Baxter State Bank,
308 U. S. 371
Sunshine Anthracite Coal Co. v. Adkins, 310 U.
; Jackson v. Irving Trust Co.,
311 U. S. 494
And see Forsyth v. Hammond, 166 U.
; Heiser v. Woodruff, 327 U.
American Surety Co. v. Baldwin, 287 U.
; Treinies v. Sunshine Mining Co.,
308 U. S. 66
And see Chicago Life Insurance Co. v. Cherry, 244 U. S.
Davis v. Davis, 305 U. S. 32
305 U. S. 40
And see Stoll v. Gottlieb, 305 U.
, 305 U. S. 172
cases discussed supra.
We, of course, intimate no opinion as to the scope of
Congressional power to legislate under Article IV, § 1 of the
Constitution. See note
Justices Brewer, Shiras, and Peckham dissented. Mr. Justice
Holmes took no part in the case.
Thus, in the Andrews
case, before the divorce decree
was entered by the South Dakota court, the defendant withdrew her
appearance in accordance with a consent agreement.
But cf. Williams v. North Carolina, 325 U.
, 325 U. S.
Davis v. Davis, 305 U. S. 32
305 U. S. 40
Williams v. North Carolina, 317 U.
, 317 U. S.
Milwaukee County v. M. E. White Co., 296 U.
, 296 U. S.
-277; Magnolia Petroleum Co. v. Hunt,
320 U. S. 430
320 U. S.
But we may well doubt that the judgment which we herein announce
will amount to substantial interference with state policy with
respect to divorce. Many States which have had occasion to consider
the matter have already recognized the impropriety of permitting a
collateral attack on an out-of-state divorce decree where the
defendant appeared and participated in the divorce proceedings.
See, e.g., Norris v. Norris,
1937, 200 Minn. 246, 273 N.W.
708; Miller v. Miller,
65 N.Y.S.2d 696, aff'd,
271 App.Div. 974, 67 N.Y.S.2d 379; Cole v. Cole,
N.J.Eq. 206, 124 A. 359.
Broderick v. Rosner, 294 U. S. 629
294 U. S. 642
Williams v. North Carolina, 317 U.
, 317 U. S.
Williams v. North Carolina, 325 U.
Cf. Stoll v. Gottlieb, 305 U.
, 305 U. S.
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE MURPHY concurs,
What Mr. Justice Holmes said of the ill-starred Haddock v.
may equally be said here: "I do not suppose that
civilization will come to an end whichever way this case is
decided." 201 U. S. 201
562, 201 U. S. 628
But, believing as I do that the decision just announced is
calculated, however unwittingly, to promote perjury without
Page 334 U. S. 357
otherwise appreciably affecting the existing disharmonies among
the forty-eight States in relation to divorce, I deem it
appropriate to state my views.
Not only is today's decision fraught with the likelihood of
untoward consequences. It disregards a law that, for a century, has
expressed the social policy of Massachusetts, and latterly of other
States, in a domain which, under our Constitution, is peculiarly
the concern of the States, and not of the Nation.
If all that were necessary in order to decide the validity in
one State of a divorce granted in another was to read the Full
Faith and Credit Clause of the Constitution, art. 4, § 1,
generations of judges would not have found the problem so
troublesome as they have, nor would a divided Court have
successively pronounced a series of discordant decisions. "Full
faith and credit" must be given to a judgment of a sister State.
But a "judgment" implies the power of the State to deal with the
subject matter in controversy. A State court which has entered what
professes to be a judgment must have had something on which to act.
That something is what is conveyed by the word "jurisdiction," and,
when it comes to dissolving a marriage status, throughout the
English-speaking world, the basis of power to act is domicile.
Whether or not in a particular situation a person is domiciled in a
given State depends on circumstances, and circumstances have myriad
diversities. But there is a consensus of opinion among
English-speaking courts the world over that domicile requires some
sense of permanence of connection between the individual who claims
it and the State which he asks to recognize it.
It would certainly have been easier if, from the beginning, the
Full Faith and Credit Clause had been construed to mean that the
assumption of jurisdiction by the courts of a State would be
conclusive, so that every other State would have to respect it. But
Page 334 U. S. 358
has not been the law since 1873. Thompson
18 Wall. 457. Nor was it the law when
this Court last considered the divorce problem, in 1945.
Williams v. North Carolina, 325 U.
. A State that is asked to enforce the action of
another State may appropriately ascertain whether that other State
had power to do what it purported to do. And if the enforcing State
has an interest under our Constitution in regard to the subject
matter that is vital and intimate, it should not be within the
power of private parties to foreclose that interest by their
private arrangement. Andrews v. Andrews, 188 U. S.
; cf. Fall v. Eastin, 215 U. S.
; Alaska Packers Association v. Industrial Accident
Commission, 294 U. S. 532
If the marriage contract were no different from a contract to
sell an automobile, the parties thereto might well be permitted to
bargain away all interests involved, in or out of court. But the
State has an interest in the family relations of its citizens
vastly different from the interest it has in an ordinary commercial
transaction. That interest cannot be bartered or bargained away by
the immediate parties to the controversy by a default or an
arranged contest in a proceeding for divorce in a State to which
the parties are strangers. Therefore, the constitutional power of a
State to determine the marriage status of two of its citizens
should not be deemed foreclosed by a proceeding between the parties
in another State, even though, in other types of controversy,
considerations making it desirable to put an end to litigation
might foreclose the parties themselves from reopening the dispute.
] I cannot agree that
the Constitution forbids
Page 334 U. S. 359
a State from insisting that it is not bound by any such
proceedings in a distant State wanting in the power that domicile
alone gives, and that its courts need not honor such an
intrinsically sham proceeding, no matter who brings the issue to
That society has a vital interest in the domestic relations of
its members will be almost impatiently conceded. [Footnote 2/2
] But it is not enough to pay lip
service to the commonplace as an abstraction. Its implications must
be respected. They define our problems. Nowhere in the United
States, not even in the States which grant divorces most freely,
may a husband and wife rescind their marriage at will, as they
might a commercial contract. Even if one thought that such a view
of the institution of marriage was socially desirable, it could
scarcely be held that such a personal view was incorporated into
the Constitution or into the law for the enforcement of the Full
Faith and Credit Clause enacted by the First Congress. 1 Stat. 122,
28 U.S.C. § 687. That, when the Constitution was ordained, divorce
was a matter of the deepest public concern, rather than deemed a
personal dispute between private parties, is shown by the fact that
it could be secured almost exclusively only by special enactments
of the several legislatures, and not through litigation in court.
Ireland and Galindez, Divorce in the Americas (1947)
Page 334 U. S. 360
As a contract, the marriage contract is unique in the law. To
assimilate it to an ordinary private contract can only mislead.
See Maynard v. Hill, 125 U. S. 190
125 U. S.
-214; Restatement of the Law, Contracts, §§ 584, 586;
cf. 17 U. S.
4 Wheat. 518, 17 U. S.
-629. The parties to a marriage do not comprehend
between them all the interests that the relation contains. Society
sanctions the institution, and creates and enforces its benefits
and duties. As a matter of law, society is represented by the
permanent home the parties -- in other words, that of their
domicile. In these cases, that State was Massachusetts.
Massachusetts has seen fit to subject its citizens to the
"A divorce decreed in another jurisdiction according to the laws
thereof by a court having jurisdiction of the cause and of both the
parties shall be valid and effectual in this commonwealth; but if
an inhabitant of this commonwealth goes into another jurisdiction
to obtain a divorce for a cause occurring here while the parties
resided here, or for a cause which would not authorize a divorce by
the laws of this commonwealth, a divorce so obtained shall be of no
force or effect in this commonwealth."
Mass.Gen.Laws, c. 208, § 39 (1932).
This statute, in substance, [Footnote 2/3
] was first enacted in 1935,
Page 334 U. S. 361
and even then merely formalized a prior rule of judicial origin.
Cf. Hanover v. Turner,
14 Mass. 227; Report of the
Commissioners Appointed to Revise the General Statutes of the
Commonwealth, pt. II, p. 123; 2 Kent, Commentaries, Lect. 27,
*108-*109. The Uniform Annulment of Marriages and Divorce Act,
] passed by Delaware,
] New Jersey,
] and Wisconsin,
] is almost identical,
as is a Maine statute [Footnote
] on the same subject.
Massachusetts says through this statute that a person who enjoys
its other institutions but is irked by its laws concerning the
severance of the marriage tie must either move his home to some
other State with more congenial laws or remain and abide by the
laws of Massachusetts. He cannot play ducks and drakes with the
State by leaving it just long enough to take advantage of a
proceeding elsewhere, devised in the interests of a quick divorce,
intending all the time to retain Massachusetts as his home, and
then return there, resume taking advantage of such of its
institutions as he finds congenial, but assert his freedom from the
restraints of its policies concerning severance of the marriage
tie. Massachusetts has a right to define the terms on which it will
grant divorces and to refuse to recognize divorces granted by other
States to parties who, at the time, are still Massachusetts
domiciliaries. Has it not also the right to frustrate evasion of
its policies by those of its permanent residents who leave the
State to change their spouses, rather than to change their homes,
merely because they go through a lukewarm or feigned contest over
The nub of the Williams
decision was that the domicile
has an independent interest in the marital
Page 334 U. S. 362
status of its citizens that neither they nor any other State
with which they may have a transitory connection may abrogate
against its will. Its interest is not less because both parties to
the marital relationship, instead of one, sought to evade its laws.
In the Williams
case, it was not the interest of Mrs.
Williams, or that of Mr. Hendryx, that North Carolina asserted. It
was the interest of the people of North Carolina. The same is true
here of the interest of Massachusetts. [Footnote 2/9
] While the State's interest may be
expressed in criminal prosecutions, with itself formally a party as
in the Williams
case, the State also expresses its
sovereign power when it speaks through its courts in a civil
litigation between private parties. Cf. Shelley v.
Kraemer, 334 U. S. 1
Surely there is involved here an exercise by Massachusetts of
its policy concerning the termination of marriage by its own
citizens. The Framers left that power over domestic relations in
the several States, and every effort to withdraw it from the States
within the past sixty years has failed. [Footnote 2/10
] An American citizen may change his
domicile from one State to another. And so a State must respect
another State's valid divorce decree even though it concerns its
former citizens. But the real question here is whether the Full
Faith and Credit Clause can be used as a limitation on the power of
a State over its citizens who do not change their domicile, who do
not remove to another State, but who leave the State only long
enough to escape the rigors of its laws, obtain a divorce, and
Page 334 U. S. 363
scurry back. To hold that this Massachusetts statute contravenes
the Full Faith and Credit Clause is to say that that State has so
slight a concern in the continuance or termination of the marital
relationships of its domiciliaries that its interest may be
foreclosed by an arranged litigation between the parties in which
it was not represented. [Footnote
Today's decision may stir hope of contributing toward greater
certainty of status of those divorced. But when people choose to
avail themselves of laws laxer than those of the State in which
they permanently abide, and where, barring only the interlude
necessary to get a divorce, they choose to continue to abide,
doubts and conflicts are inevitable so long as the divorce laws of
the forty-eight States remain diverse, and so long as we respect
the law that a judgment without jurisdictional foundation is not
constitutionally entitled to recognition everywhere. These are
difficulties, as this Court has often reminded, inherent in our
federal system, in which governmental power over domestic relations
is not given to the central government. Uniformity regarding
divorce is not within the power of this Court to achieve so long as
"the domestic relations of husband and wife . . . were matters
reserved to the States." Ohio ex rel. Popovici v. Agler,
280 U. S. 379
Page 334 U. S. 364
280 U. S. 384
In re Burrus, 136 U. S. 586
136 U. S.
] And so long as the Congress has not exercised its powers
under the Full Faith and Credit Clause to meet the special problems
raised by divorce decrees, this Court cannot, through its
adjudications, achieve the result sought to be accomplished by a
long train of abortive efforts at legislative and constitutional
reform. [Footnote 2/13
attempt to shape policy so as to avoid disharmonies in our divorce
Page 334 U. S. 365
was not a power entrusted to us, nor is the judiciary competent
to exercise it. Courts are not equipped to pursue the paths for
discovering wise policy. A court is
Page 334 U. S. 366
confined within the bounds of a particular record, and it cannot
even shape the record. Only fragments of a social problem are seen
through the narrow windows of a litigation. Had we innate or
acquired understanding of a social problem in its entirety, we
would not have at our disposal adequate means for constructive
solution. The answer to so tangled a problem as that of our
conflicting divorce laws is not to be achieved by the simple
judicial resources of either/or -- this decree is good and must be
respected, that one is bad and may be disregarded. We cannot draw
on the available power for social invention afforded by the
Constitution for dealing adequately with the problem, because the
power belongs to the Congress, and not to the Court. The only way
in which this Court can achieve uniformity, in the absence of
Congressional action or constitutional amendment, is by permitting
the States with the laxest divorce laws to impose their policies
upon all other States. We cannot, as judges, be ignorant of that
which is common knowledge to all men. We cannot close our eyes to
the fact that certain States make an industry of their easy divorce
laws, and encourage inhabitants of other States to obtain "quickie"
divorces which their home States deny them. [Footnote 2/14
] To permit such States
Page 334 U. S. 367
to bind all others to their decrees would endow with
constitutional sanctity a Gresham's Law of domestic relations.
Fortunately, today's decision does not go that far. But its
practical result will be to offer new inducements for conduct by
parties and counsel which, in any other type of litigation, would
be regarded as perjury, but which is not so regarded where divorce
is involved, because ladies and gentlemen indulge in it. But if the
doctrine of res judicata
as to jurisdictional facts in
controversies involving exclusively private interests as infused
into the Full Faith and Credit Clause is applied to divorce decrees
so as to foreclose subsequent inquiry into jurisdiction, there is
neither logic, nor reason, nor practical desirability in not taking
the entire doctrine over. Res judicata
relitigation if there has been an opportunity to litigate once,
whether or not it has been availed of, or carried as far as
possible. Cromwell v. County of Sac, 94 U. S.
; Chicot County Drainage District v. Baxter State
Bank, 308 U. S. 371
] And it applies to
questions of jurisdiction of subject matter as well as to that of
persons. Stoll v. Gottlieb, 305 U.
; Treinies v. Sunshine Mining Co.,
308 U. S. 66
should it not apply where there has been a wasted opportunity to
litigate, but should apply where the form of a contest has been
gone through? [Footnote 2/16
if more than form is required, how much of a contest must it be?
Must the contest be bellicose or
Page 334 U. S. 368
may it be pacific? Must it be fierce, or may it be tepid? Must
there be a cloud of witnesses to negative the testimony of the
plaintiff, or may a single doubter be enough? Certainly, if the
considerations that establish res judicata
private litigants in the ordinary situations apply to the validity
of a divorce against the public policy of the domicile, it cannot
make a rational difference that the question of domicile is
contested with bad feeling, rather than amicably adjusted. The
essence of the matter is that, through the device of a consent
decree, a policy of vital concern to States should not be allowed
to be defied with the sanction of this Court. If, perchance, the
Court leaves open the right of a State to prove fraud in the
ordinary sense -- namely, that a mock contest was won by
prearrangement -- the claim falls that today's decision will
substantially restrict the area of uncertainty as to the validity
of divorces. If the Court seeks to avoid this result by holding
that a party to a feigned legal contest cannot question in his home
State the good faith behind an adjudication of domicile in another
Page 334 U. S. 369
holding is bound to encourage fraud and collusion still
In considering whether the importance of the asserted
uncertainties of marital status under existing law is sufficient to
justify this result, it is important to think quantitatively, not
dramatically. One would suppose that the diversity in the divorce
laws of the forty-eight States, and the unwillingness of most of
them to allow the few which make an industry out of granting
divorce to impose their policies upon the others, undermines the
structure of the family and renders insecure all marriages of
previously divorced persons in the United States. The proportion of
divorced people who have cause to worry is small indeed. Those who
were divorced at home have no problem. Those whose desire to be rid
of a spouse coincided with an unrelated shift of domicile will
hardly be suspect where, as is usually true, the State to which
they moved did not afford easy divorces or required a long
residence period. Actually, there are but five States -- Arkansas,
Florida, Idaho, Nevada, and Wyoming -- in which divorces may be
easily obtained on less than one year's residence. [Footnote 2/17
] Indovina and Dalton,
Statutes of All States and Territories with Annotations on
Marriage-Annulment-Divorce (Santa Monica, 1945). These five States
accounted for only 24,370 divorces in 1940, but 9% of the national
total. Dept. of Commerce, Statistical Abstract of the United States
(1946) p. 94. The number of divorces granted in Arkansas, Idaho,
and Wyoming is small enough to indicate the normal incidence of
divorce among their permanent population, with only few transients
taking advantage of their divorce laws. Nevada and Florida thus
attract virtually all the nonresident
Page 334 U. S. 370
divorce business. Yet, between them, only 16,375 divorces were
granted in 1940, 6% of the total. Ibid.
Some of these
people were undoubtedly permanently settled in those States, and
have nothing to fear. Others may have moved to those States,
intending to make their permanent homes there, and have since
remained. They were amply protected by the Full Faith and Credit
Clause even before today's decision. The only persons at all
insecure are that small minority who temporarily left their home
States for a State -- one of the few -- offering quick and easy
divorce, obtained one, and departed. Is their security so important
to the Nation that we must safeguard it even at the price of
depriving the great majority of States which do not offer
bargain-counter divorces of the right to determine the laws of
domestic relations applicable to their citizens?
Even to a believer in the desirability of easier divorce -- an
issue that is not our concern -- this decision should bring little
solace. It offers a way out only to that small portion of those
unhappily married who are sufficiently wealthy to be able to afford
a trip to Nevada or Florida, and a six-week or three-month stay
there. [Footnote 2/18
Of course, Massachusetts may not determine the question of
domicile in disregard of what her sister States have found. A trial
of this issue would not satisfy the requirements
which we laid down in the second Williams
case, 325 U.S.
at 325 U. S. 236
Nor can Massachusetts make findings
Page 334 U. S. 371
on this issue which preclude reexamination by this Court, nor
may it, through prejudice in favor of its own policies, strain the
facts to find continuance of the tie between the parties and
itself. But the records in these cases do not justify the
conclusion that Massachusetts has been remiss in its duty of
respect. It is true that its courts did not employ a formal legal
jargon and say that there was a presumption in favor of the
findings of Florida or Nevada, and that this presumption had been
overcome by the evidence. But the Constitution demands compliance,
not a form of words. To ascertain whether, in fact, there is a real
basis for saying that Massachusetts did not accord proper
recognition to Nevada's and Florida's findings, we must turn to the
records, and discover for ourselves just how much warrant there was
for their findings of domicile.
The petitioner and respondent in Sherrer v. Sherrer
were married in New Jersey in 1930, and moved to Monterey,
Massachusetts, in 1932, where they lived together until 1944. They
had two children. There was evidence that their relationship became
less than harmonious towards the end of this period, that Mrs.
Sherrer was troubled by a sinus infection and had been advised by a
physician to go to Florida, and that she consulted a Massachusetts
attorney about divorce before leaving. In March, 1944, she told
Sherrer that she wished to take a trip to Florida for a month's
rest, and wanted to take the children along. She later testified
that she had intended even then to go to Florida to stay, but had
lied in order to obtain her husband's consent. His consent and the
necessary funds were forthcoming. On April 3, 1944, Mrs. Sherrer
and the children left for Florida, taking along a suitcase and a
small bag, but leaving behind a trunk, some house dresses, and much
of the children's clothing. They arrived the following day. She
rented an apartment in St. Petersburg, which they occupied for
Page 334 U. S. 372
three weeks, then moved into a furnished cottage, and later into
another furnished cottage.
About a week after Mrs. Sherrer's departure, one Phelps, who had
previously been at least an acquaintance of hers, knowing that she
had gone to St. Petersburg, went there, met her soon after, and saw
her frequently. On April 20, she wrote to her husband that she did
not care to go back to him, and returned the money for train fare
which he had sent. She sent her older daughter to school and took a
job as a waitress. Phelps found employment in a lumber yard.
Florida law permits institution of proceedings for divorce after
ninety days' bona fide
residence in the State. On July 6,
ninety-three days after her arrival in the State, Mrs. Sherrer
consulted a Florida attorney, had the necessary papers drawn up,
and filed a libel for divorce the same day. Sherrer, receiving
notice by mail, retained Florida counsel, who entered a general
appearance and filed an answer, which denied Mrs. Sherrer's
allegations as to residence. The case was set for hearing on
November 14. On November 9, Sherrer arrived on the scene. He and
his wife entered into a stipulation, subject to the approval of the
court, providing for custody of the children in him during the
school year and in her during summer vacations. At the hearing,
Sherrer's attorney was present, and Sherrer remained in a side
room. The attorney did not cross-examine Mrs. Sherrer or offer
evidence as to either jurisdiction or the merits other than the
stipulation regarding custody of the children. Sherrer was called
into the courtroom and questioned as to his ability to look after
the children during the school year. The hearing was closed, the
decree being held up pending filing of a deposition by Mrs.
Sherrer. On November 19, Sherrer returned to Massachusetts with the
children. On November 29, the deposition was filed and the decree
entered. On December 1, the petitioner married
Page 334 U. S. 373
Phelps, and the couple took up residence in the cottage which
she and the children had previously occupied.
There they remained until early in February, 1945, when they
returned to Massachusetts, staying for a few days at Westfield and
then returning to Monterey. Phelps' father lived in Westfield, and
Phelps testified that his father's critical illness occasioned
their return. A few days later, Phelps was served with papers in a
$15,000 alienation of affections action brought by Sherrer. He
testified that the pendency of this action was the reason for his
remaining in Massachusetts even after his father's health had
become less critical. The trial was set many months ahead, but
Phelps and the petitioner did not return to Florida. Rent on the
Florida cottage for a month following their departure was paid, but
this may have been required, as it was paid on a monthly basis.
Some personal belongings were left behind there. Later, the
landlord was informed that Phelps and the petitioner would not
continue renting the cottage, and, still later, they asked that
their belongings be sent to Monterey.
Sherrer had meanwhile moved out of the house which he and the
petitioner had formerly lived in, which they owned together. Phelps
and the petitioner moved in, and did not return to Florida. On June
28, 1945, a petition was filed by Sherrer in the Berkshire County
Probate Court for a decree setting forth that his wife had deserted
him and that he was living apart from her for justifiable cause. A
statute provided that such a decree would empower a husband to
convey realty free of dower rights. Mass.Gen.Laws c. 209, § 36
(1932). The Probate Court found that Mrs. Sherrer had not gone to
Florida to make it her permanent home, but with the intention of
meeting Phelps, divorcing Sherrer, marrying Phelps, and returning
to Massachusetts. These findings were upheld by the Supreme
Judicial Court of the State.
Page 334 U. S. 374
The parties in Coe v. Coe
were married in 1934 in New
York City. Until 1939, they spent a large part of each year in
travel, but had only one home, owned by Coe, in Worcester,
Massachusetts. Coe also owned other land, maintained bank accounts,
paid taxes, registered his automobile, etc., all in Worcester.
Beginning in 1940, Coe also maintained an apartment in New York
City, where much of his business was conducted. He usually lived
there during the week, returning to Worcester on weekends. In New
York City there also lived one Dawn Allen, his secretary and
friend. His relations with Mrs. Coe deteriorated. It appears that,
during this period as well, his principal domicile was in
Worcester. His own testimony as to where he intended to make his
home at this time was contradictory. He kept bank accounts and most
of his funds in New York, and did jury duty there. He used his
Worcester address in correspondence and when incorporating a
personal corporation. [Footnote
] The trial judge found that his domicile remained in
In January, 1942, Mrs. Coe filed a petition for separate support
in the Worcester County Probate Court. Coe cross-petitioned for
divorce. On March 25, Coe's petition was dismissed, and Mrs. Coe's
granted; she was awarded $35 per week. She appealed, complaining of
the amount. While the appeal was pending, Coe left Worcester for
New York, and, accompanied by Dawn Allen and her mother, left New
York on May 31, for Reno, Nevada, arriving there on June 10. He
lived at the Del Monte Ranch. He testified that he went there to
relieve his asthma and because of Nevada's liberal tax laws. He
also gave conflicting testimony as to whether
Page 334 U. S. 375
he went there in order to get a divorce. On June 11, he
consulted a lawyer for whom his Worcester attorney had prepared a
divorce memorandum. He opened a bank account and rented a safe
deposit box, registered his automobile and took out a driver's
license, all in Nevada. He did not sever his other ties with New
York or Massachusetts.
Nevada law permits institution of proceedings for divorce after
six weeks' residence. Forty-seven days after his arrival in the
State, Coe filed a complaint for divorce, alleging six weeks'
residence. Notice was mailed to Mrs. Coe, who
followed to Reno, engaged an attorney, and demurred to the
complaint. Subsequently, however, she and Coe entered into a
written agreement, providing for a lump sum payment to Mrs. Coe of
$7,500, and $35 per week. On September 19, she filed an answer in
which she admitted Coe's residence as alleged in his complaint, and
a cross-complaint. On the same day, a divorce was granted to Mrs.
Coe, and the court adopted the agreement. Also on the same day, Coe
married Dawn Allen. Two days later, they left Reno, returned to New
York, where Coe gave up his apartment, and returned to Worcester on
October 1, residing at a house owned by him there.
On February 25, 1943, the Supreme Judicial Court of
Massachusetts affirmed the separate maintenance decree of the
Worcester County Probate Court. Coe made no payments to the
respondent under either that decree or that of the Nevada court,
other than the $7,500 lump sum. On May 22, 1943, respondent filed a
petition in the Probate Court to have him cited for contempt. Coe
petitioned to have the decree revoked because of the supervening
Nevada divorce decree.
While this was pending, Coe and Dawn spent a part of the summer
of 1943 at the Del Monte Ranch, near
Page 334 U. S. 376
Reno, to confer with Coe's Nevada divorce lawyer and to
negotiate for the purchase of the Ranch. Apparently the purchase
was not made. With the exception of this period, he and Dawn have
resided at Worcester continuously since their marriage. Coe kept
his bank accounts and post office box there, and paid his poll tax
and other local taxes. In February, 1944, he purchased a more
expensive house, into which they moved. In various formal papers,
he noted Worcester as his residence.
On October 21, 1943, the Probate Court, on the basis of the
Nevada divorce, revoked its separate maintenance decree. The
respondent's proffer of evidence to show lack of jurisdiction in
the Nevada court was rejected. This ruling was reversed by the
Supreme Judicial Court, which sent the case back to allow evidence
contradicting the Nevada finding of domicile. On remand, such
evidence was taken, the gist of which has been summarized. The
Probate Court found that the parties had been domiciled in
Massachusetts throughout, and that Coe's trip to Nevada was made in
order to obtain a divorce, and not to change his domicile. These
findings were upheld by the Supreme Judicial Court.
Conceding that matters of credibility were for the triers of
fact, the evidence appears to me to have been ample to justify the
findings that were made, even giving every weight to the contrary
Nevada and Florida determinations and treating the burden on the
party contradicting those determinations as most heavy. Judges, as
well as jurors, naturally enough may differ as to the meaning of
testimony and the weight to be given evidence. I would not deem it
profitable to dissent on such an issue touching the unique
circumstances of a particular case. My disagreement with the
decision of the Court is not as to the weight of the evidence, but
concerns what I take to be its holding, that the opportunity of the
parties of litigate
Page 334 U. S. 377
the question of jurisdiction in Nevada and Florida foreclosed
Massachusetts from raising the question later. If the Court had
merely held that the evidence was not sufficient to justify
Massachusetts' findings contrary to what was recited in the decrees
of Nevada and Florida, or as an added assurance that obligations of
recognition be honored, had required of the Massachusetts court
explicit avowal of the presumption in favor of the Florida and
Nevada decrees, I should have remained silent. But the crux of
today's decision is that, regardless of how overwhelming the
evidence may have been that the asserted domicile in the State
offering bargain-counter divorces was a sham, the home the parties
is not permitted to question the matter if the form of a
controversy has been gone through. To such a proposition I cannot
assent. Decisions of this Court that have not stood the test of
time have been due not to want of foresight by the prescient
Framers of the Constitution, but to misconceptions regarding its
requirements. I cannot bring myself to believe that the Full Faith
and Credit Clause gave to the few States which offer
bargain-counter divorces constitutional power to control the social
policy governing domestic relations of the many States which do
* [This is also a dissent to Coe v. Coe, post,
334 U. S.
Nor do I regard Davis v. Davis, 305 U. S.
, as contrary authority. That case did not depend for
its result on the fact that there had been an adjudication of the
jurisdiction of the court rendering the divorce enforced, inasmuch
as this Court found that the State granting the divorce was in fact
that of the domicile. 305 U.S. at 305 U. S. 41
Moreover this Court's citation therein of Andrews v. Andrews,
indicates an absence of intention to overrule the
holding of that case that opportunity to litigate the issue of
domicile does not foreclose inquiry as to the true facts.
Andrews v. Andrews
has since been cited with respect, as
recently as Williams v. North Carolina, 317 U.
, 317 U. S. 309
317 U. S. 320
n. 7, and 325 U. S. 325
226, 325 U. S. 229
325 U. S. 240
325 U. S.
the English laws providing for a King's Proctor
to represent the interests of the Crown in divorce proceedings.
Sections 5-7, Matrimonial Causes Act, 1860, 23 & 24 Vict., c.
44; § 1, Matrimonial Causes Act, 1873, 36 & 37 Vict., c. 31; §
181, The Supreme Court of Judicature (Consolidation) Act, 1925, 15
§ 16 Geo. 5, c. 49, 9 Halsbury's Statutes of England 393, 394.
Rev.L. 1835, c. 76:
"§ 39. When any inhabitant of this state shall go into any other
state or country, in order to obtain a divorce for any cause which
had occurred here, and whilst the parties resided here, or for any
cause which would not authorize a divorce by the laws of this
state, a divorce so obtained shall be of no force or effect in this
"§ 40. In all other cases, a divorce decreed in any other state
or country, according to the law of the place, by a court having
jurisdiction of the cause and of both of the parties, shall be
valid and effectual in this state."
fn2/13|>note 13, infra.
Del.Rev.Code c. 86, § 29 (1935).
N.J.Stat.Ann. § 2:50-35 (1939).
Wis.Stat. § 247.21 (1945).
Me.Rev.Stat. c. 73, § 12 (1930).
The result of the assertion of the State's interest may be a
windfall to a party who has sought to bargain his or her rights
away and now seeks to renege on the agreement. This fact, however,
should scarcely be allowed to stand in the way of the assertion by
the its paramount concern in the matter. Such an unexpected
windfall to a party who, by ethical standards, may be regarded as
undeserving is a frequent consequence of findings of lack of
Holmes, C.J., in Andrews v.
176 Mass. 92, 96, 57 N.E. 333.
fn2/13|>note 13, infra.
Today's decision would also seem to render invalid, under the
Full Faith and Credit Clause, a large proportion of the commonly
encountered injunctions against a domiciliary prosecuting an
out-of-State divorce action. Cf. Kempson v. Kempson,
N.J.Eq. 94, 43 A. 97, 61 N.J.Eq. 303, 48 A. 244, 63 N.J.Eq. 783, 52
A. 360, 625; Pound, The Progress of the Law -- Equity, 33
Harv.L.Rev. 420, 425-28; Jacobs, The Utility of Injunctions and
Declaratory Judgments in Migratory Divorce, 2 Law &
Contemp.Prob. 370; Note, 13 Bklyn.L.Rev. 148. Since no State may
enjoin its inhabitants from changing their domiciles in order to
procure divorces, it would seem that, henceforth, a recital of
domicile in the out-of-State divorce decree will render the
injunction retroactively invalid if there has been any semblance of
a contest in the divorce proceeding.
The Massachusetts law is surely legislation within the field
regulating the domestic relations of husband and wife, and, as
such, within the scope of "matters reserved to the States." It can
scarcely be doubted that, if a constitutional amendment withdrew
this field from the States and gave it to the Federal Government,
an Act of Congress making the same provision substantively as did
Massachusetts regarding divorces granted in countries other than
the United States to citizens of this country would be held
constitutional. Such a law is not less a law concerning "the
domestic relations of husband and wife" even though, incidentally,
it may affect the force to be given to what appears to be a
judgment of a sister State.
Three modes of achieving uniformity have been attempted --
adoption of a constitutional amendment authorizing Federal domestic
relations legislation; Congressional action implementing the Full
Faith and Credit Clause, and uniform State legislation. Such
attempts were originally fostered by those who sought legislation
rendering divorce uniformly difficult
Lichtenberger, Divorce (1931) pp. 187 et
Cavers, Foreword, 2 Law & Contemp.Prob. 289.
The first effort to amend he Constitution to empower Congress to
enact domestic relations legislation uniform throughout the Nation
was made in 1884. Since then, at least seventy similar amendments
have been proposed. Ames, The Proposed Amendments to the
Constitution of the United States during the First Century of its
History , Ann.Rep. American Historical Assn., reprinted as
H.R.Doc. No. 353, 54th Cong., 2d Sess., pt. 2, p. 190; Sen.Dec. No.
93, 69th Cong., 1st Sess.; "Proposed Amendments to the Constitution
of the United States Introduced in Congress from the 69th Congress,
2d Session through the 78th Congress, December 6, 1926, to December
19, 1944" (U.S. Govt. Printing Office, 1946). None has been
favorably acted upon. See, e.g.,
H.R.Rep. No. 1290, 52nd
Cong., 1st Sess., p. 2, in which the majority of the House
Judiciary Committee, reporting adversely on such a proposed
amendment, pointed out that Congress might achieve a measure of
uniformity through exercise of its existing powers to implement the
Full Faith and Credit Clause.
Suggestions that such a statute be enacted by Congress have not
been lacking. See, e.g.,
52 Rep. A.B.A. 292, 319; Corwin,
The "Full Faith and Credit" Clause, 81 U. of Pa.L.Rev. 371, 388;
Mr. Justice Stone, dissenting, in Yarborough v.
Yarborough, 290 U. S. 202
290 U. S. 215
n. 2,; Jackson, Full Faith and Credit -- The Lawyers' Clause of the
Constitution, 45 Col.L.Rev. 1, 21. And Senator McCarron of Nevada
is currently seeking to have such legislation adopted. See
S.1960, 80th Cong., 2d Sess.
The most vigorous efforts, however, have been made in the
direction of securing uniform State legislation. President Theodore
Roosevelt, in calling on Congress to provide for compilation of
marriage and divorce statistics, included a suggestion of
cooperation among the States in enacting uniform laws. 15
Richardson, Messages and Papers of the Presidents 6942. On the
initiative of the Governor of Pennsylvania, a National Congress on
Uniform Divorce Laws, in which forty-two States were represented,
was called in 1906. This Congress resolved that a constitutional
amendment was not feasible, and drafted resolutions concerning
uniform State legislation. Lichtenberger, supra,
Proceedings, National Congress on Uniform Divorce
Laws (1906) passim;
Proceedings 2d Meeting of the
Governors of the States of the Union (1910), pp. 185-198. It is
interesting to note that even these proponents of uniformity
advocated that each State "adopt a statute embodying the principle
contained in" the very Massachusetts statute now held
unconstitutional by the Court, perhaps in the interests of
uniformity. Lichtenberger, supra
The bill prepared by the Congress was also approved by the
Commissioners on Uniform State Laws (Proceedings, 17th Ann.Conf.,
Commissioners on Uniform State Laws (1907) pp. 120 et
), but was adopted by only three States. See
The Commissioners eventually decided that no
uniform law establishing substantive grounds for divorce could
succeed, and replaced this proposal with the Uniform Divorce
Jurisdiction Act, which would have accorded recognition to a wider
range of decrees than were protected by Haddock v.
Haddock, 201 U. S. 562
then in force.  Handbook of the National Conference of
Commissioners on Uniform State Laws, pp. 498-502. This act has been
adopted only by Vermont, L.1931, No. 45, and was repealed two years
later. L.1933, No. 38.
Meanwhile, other organizations have not given up the attempt to
have enacted uniform divorce laws, although, in recent years, the
objective has usually been uniformly liberal, rather than uniformly
repressive, legislation. See, e.g.,
Companion, Dec. 1947, p. 32.
Even in the international field, attempts to avoid conflicts as
to the extraterritorial validity of divorces have been made.
Convention to Regulate Conflicts of Laws and of
Jurisdiction in Matters of Divorce and Separation, The Hague, June
the interesting account of Nevada's divorce mill,
written by two members of the Nevada Bar, Ingram and Ballard, The
Business of Migratory Divorce in Nevada, 2 Law & Contemp.Prob.
Bergeson, The Divorce Mill Advertises,
whether today's decision applies to ex
Nevada decrees by default, where the defendant later
files a general appearance and the record is made to show
jurisdiction nunc pro tunc.
Nev.Comp.Laws § 9488.
It is by no means clear that the issue before the Massachusetts
courts in either of these cases was or could have been litigated in
Florida or Nevada. All that the Florida or Nevada courts could have
determined was whether the jurisdictional requisites of State law
and of the due process clause of the Constitution, Amend. 14, were
met. And, if a direct attack on these decrees had been made in this
Court, all that we could have decided would have been the due
process point. A divorce may satisfy due process requirements and
be valid where rendered, and still lack the jurisdictional
requisites for full faith and credit to be mandatory. Compare
Williams v. North Carolina, 317 U. S. 287
317 U. S. 307
(concurring opinion), with Williams v. North Carolina,
325 U. S.
This is true even though the Florida and
Nevada courts appear to characterize the jurisdictional
prerequisites under their respective laws as domicile, Wade v.
93 Fla. 1004, 1007, 113 So. 374; Latterner v.
51 Nev. 285, 274 P. 194; since we may be unwilling
to apply as loose a test of "domicile," in determining whether
extra-state enforcement is mandatory, as those States might
properly choose to use in determining what divorces might be
granted and effective within their own borders. Thus, at no point
in the proceedings in Florida or Nevada in the instant cases was
there an opportunity to litigate whether Mrs. Sherrer or Mr. Coe
had acquired Florida or Nevada domicile, respectively, sufficient
to entitle their divorces to extraterritorial recognition.
North Carolina appears to be the only other State allowing
divorce on less than a year's residence, but it does not allow
divorce for many of the usual causes. The Williams
attest that its laws are not lax.
The easier it is made for those who, through affluence, are able
to exercise disproportionately large influence on legislation to
obtain migratory divorces, the less likely it is that the divorce
laws of their home States will be liberalized, insofar as that is
deemed desirable, so as to affect all. See
Migratory Divorces, 2 Law & Contemp.Prob. 293, 298. For
comparable instances in the past of discrimination against the poor
in the actual application of divorce laws, cf.
Hard Times, c. 11; Haskins, Divorce, 5 Encyc.Soc.Sci. 177, 179.
For purposes of State taxation, he might well have been regarded
as domiciled in either State. Cf. Worcester County Trust Co. v.
Riley, 302 U. S. 292
Texas v. Florida, 306 U. S. 398