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Cardozo Law Review

Abstract

Liberal divorce is under assault. Yet this development—one that arguably may shape the everyday life of Americans more profoundly than nearly any other domain of state law—has elicited surprisingly little scholarly inquiry. Because divorce has long fallen within the province of states and hewed to the whim of state legislatures, restrictions on divorce have rarely inspired constitutional analysis. As a result, the constitutional architecture necessary to conceptualize—let alone resolve—the question of how divorce law intersects with fundamental rights remains strikingly wanting. Indeed, one of the enduring puzzles of constitutional scholarship is the diametrically opposed treatment of marriage and divorce. While the constitutional dimensions of marriage have attracted sustained attention from constitutional philosophers, feminist thinkers, and queer theorists alike, the relationship between constitutional law and divorce law has remained almost entirely overlooked. Correspondingly, the much noted “constitutionalization of family law” has bypassed marital dissolution, leaving the right to divorce underdeveloped and undertheorized. This Article seeks to fill the academic void by analyzing the constitutional dimensions of divorce law. Recent developments have rendered this inquiry especially urgent: Numerous states have responded to surging divorce rates by introducing—or considering—novel barriers to marital exit, a trend often termed “the divorce counter-revolution.” These efforts encompass restrictive proposals such as fault-based thresholds, predivorce counseling, extended waiting periods, spousal consent requirements, restrictions on divorce for parents of minor children, and peculiar forms of “opt-in” covenant marriage regimes. Some commentators situate these combative stances toward progressive divorce laws within the broader post-Dobbs political landscape, construing the decision as a rallying cry for men’s rights activists.8 In their view, the backlash embodied in Dobbs has furnished “the perfect maxim” for those galvanized by the demise of Roe, who are newly emboldened to target yet another achievement of women’s equality: the regime of fault-free marital exit.

Disciplines

Family Law | Law | Law and Society

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