FULL FAITH AND CREDIT: SOME ASPECTS OF THE PROBABLE
IMPACT OF S. 1331 UPON DIVORCE JURISDICTION*
1. Introductory Statement
"The full faith and credit clause has lately become much more than a
mere legal topic of argument. It has filtered down to the people themselves
...and for over four million people in this Nation whose marital positions
are currently clouded by conflicting court decisions, it is a very real and
personal consideration."I
With this thought in mind, Senator Pat McCarran (D. Nev.) has been
sponsoring for eight years a bill to implement the full faith and credit clause
of the Federal Constitution-specifically with respect to divorce jurisdiction.
The McCarran bill, S. 1331, was finally passed by the Senate on June 21,
1952. The bill was then referred to the House Judiciary Committee, but
the few remaining days of the session ran out before House action could be
taken. The bill will be re-introduced by Senator McCarran, as Chairman
of the Senate Judiciary Committee, in the first session of the 83rd Congress.
The full text of the proposed legislation follows:
"Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That where a State has
exercised through its courts jurisdiction to dissolve the marriage of
spouses, the decree of divorce thus rendered must be given full faith
and credit in every other State as a dissolution of such marriage, provided (1) the decree is final as to the issue of divorce; (2) the decree
is valid in the State where rendered; (3) the decree contains recitals
setting forth that jurisdictional prerequisites of such State to the granting of the divorce have been met; and (4) the State wherein the decree
was rendered was the last State wherein the spouses were domiciled
together as husband and wife, or the defendant in the proceeding for
divorce was personally subject to the jurisdiction of the State wherein
the decree was rendered or appeared generally in the proceedings therefore. In all such cases except cases involving fraudulent conduct of the
successful party which was practiced during the course of an actual
adversary trial of the issues joined and the effect of which was directly
and affirmatively to mislead the defeated party to his injury after he
announced that he was ready to proceed with the trial, the recitals of
the decree of divorce shall constitute a conclusive determination of the
jurisdictional facts necessary to the decree."
It is the purpose of the present paper to explore the probable impact of
S. 1331, if it is later enacted, upon existing case law as to divorce jurisdiction and the full faith and credit clause. An examination of the historical
background of the full faith and credit clause, as it is incorporated in the
Federal Constitution, is not appropriate to the present subject, and, consequently, will not be treated here. It is an unlucky circumstance of consti* This comment was written by Bernard T. Levin, B.S., L.L.B., American University,
member of the District of Columbia Bar, while a student at the Washington College of Law of
the American University.
I Quoted from statement by Senator McCarran, Press Release of July 9, 1952.
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tutional law that material bearing on the historical meaning of the clause is
scant. There is none which sheds light upon the interpretation of S. 1331.
With respect to the direct legislative history of S. 1331, the Report of
the Senate Committee on the Judiciary, Report No. 1156, may be said to
be the paramount guide as of the date of this writing. Report No. 1156
is the Senate Report accompanying S. 1331. In lieu of devoting a separate
section to an analysis of the Report, those features most clearly pointing up
the Congressional intent will be integrated into the following paragraphsdealing with the core of the subject, the probable impact of the bill upon
existing cases.
No issue will be raised here in connection with the constitutionality of
S. 1331. The writer believes that the outermost limits of legislative power
under the clause would not be transgressed by this bill. It is true that the
Supreme Court has never defined the extent of Congress' authority to legislate under the clause, yet many judicial expressions and other authoritative
statements have indicated that Congress is free to act with regard to prescribing the extraterritorial effect of state divorce decrees.2 Were Congress, for
example, to determine the grounds upon which divorces might be granted,
it is evident that a far greater constitutional question would be reached.
II. The Bill and the Cases
For the present purpose, existing case law will be studied from two basic
approaches. Attention will not be directed to certain of the more elementary
propositions, unless it be in passing. Consideration will first be devoted to
the divorce decree rendered by a state in which one of the spouses is domiciled and which is based upon constructive service of the defendant spouse.
This is the familiar ex parte-constructive service divorce. The second point
of view relates to the decree granted by a state not the state of marital
domicile, which decree is based upon either personal service in the divorce
state or general appearance. S. 1331, in clause (4), guarantees divorce
2See Costigan, The History of the Adoption of Section 1 of Article IV of the United
Slates Constitution and a Cousideration of the Effect on Judgments of That Section and of
Federal Legislation, 4 Col. L. Rev. 470 (1904); Cook, The Powers of Congress Under the Full
Faith and Credit Clause, 28 Yale L. J. 421 (1919); Ross, Full Faith and Credit in a Federal
System, 20 Minn. L. Rev. 140 (1935); Moore and Oglebay, The Supreme Court and Fnll
Faith and Credit, 29 Va. L. Rev. 557 (1943); Corwin, Out-Haddocking Haddock, 93 U. Pa.
L. Rev. 341 (1945); Jackson, Full Faith and Credit-The Lawyer's Clause of the Constitu-
tton, 45 Col. L. Rev. 1 (1945); Justice Stone's dissent in Yarborough v. Yarborough, 290 U. S.
202, 215, n. 2 (1933) (dissenting on other grounds).
Art, IV, § 1 of the United States Constitution 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 effect thereof."
Shortly after the adoption of the Constitution, the frst Congress acted pursuant to Art. IV,
§1. The statute enacted exists at present as 28 U.S.C. 1738, the phraseology slightly revised:
"State and Territorial statutes and judicial proceedings; full faith and credit.-The Acts of the
legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be
authenticated by affixing the seal of such State, Territory or Possession thereto. The records
and judicial proceedings of any court of any such State, Territory or Possession, or copies
thereof, shall be proved or admitted in other courts within the United States and its Territories
and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists,
together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the
same full faith and credit in every court within the United States and its Territories and
Possessions as they have by law or usage in the courts of such State, Territory or Possession
from which they are taken."
To date, this statute represents the extent of legislative action under the full faith and
credit clause.
decrees rendered by the state of matrimonial domicile and decrees rendered
in a second state where personal service or general appearance is had over
the defendant. What of ex parte divorces upon constructive service? What
of collusive out-of-state divorces where personal jurisdiction is had, but the
litigation is a sham?
A. Haddock and Williams I
The first Williams case is the touchstone of modem divorce lawA Brief
reference is appropriate at this juncture, however, to the legal situation just
prior to Williams L
Atherton v. Atherton,4 was concerned with a divorce granted to one
spouse at the matrimonial domicile. The decree was held to be entitled to
full faith and credit when the husband set it up as a bar to a separation
suit brought by the wife in a second state.
Haddock v. Haddock,5 involved a divorce decree granted to the husband
in the state of his domicile, but not the state of matrimonial domicile. Service by publication was had. The decree was denied faith and credit in a
second state in which the wife brought an action for separation and alimony.
Prevailing thought, then, as a consequence of these leading decisions,
was that a divorce at the domicile of one spouse was not protected by the
Constitution in the absence of some additional consideration, that is, the
state was the state of matrimonial domicile, or the defendant spouse appeared
or was personally served.
The distinction had its critical commentators. In his dissenting opinion
in the Haddock case itself, Mr. Justice Holmes wrote: ". . . . I cannot see
any ground for distinguishing between the extent of jurisdiction in the
matrimonial domicile and that, admitted to exist to some extent, in a domicile
later7acquired." 6 Judge Goodrich, too, has long been critical of the distinction.
A pause at this stage of the law, which is pre-1942, or Williams I, as
related to S. 1331, may well prove of interest.
To warrant constitutional protection, a divorce decree under S. 1331
would be required to meet all four conditions enumerated in the bill. The
fourth condition dictates that the state wherein the decree was rendered is
to be the last state wherein the spouses were domiciled together as husband
and wife, or that the defendant was personally subject to the jurisdiction of
the state wherein the decree was rendered or appeared generally in the
proceeding.
Would the proposed statute, by its express terms, revive the pre-1942
Atherton-Haddock distinction? The bill could only contemplate that result
if it would negate Williams I and the related decisions which are expressive
of the present state of the law. Therefore, a proper appraisal of the question
framed would pre-suppose a consideration of post-1942 law, beginning with
Williams 1, in light of the view thereof taken by the legislature in S. 1331.
The first Williams case expressly overruled Haddock. Persons from
North Carolina went to Nevada and remained there for the statutory period.
They then obtained divorce decrees from their former spouses, married each
8
Wiliams v. North Carolina, 317 U. S. 287 (1942).
'181 U. S. 155 (1901).
r201 U. S. 562 (1906).
Old. at 631.
r Goodrich, Matrimonial Domicile, 27 Yale L. 3. 49 (1917-18).
[42]
other and returned to North Carolina. They were indicted in North Carolina for bigamy. By way of defense, they argued that the Nevada divorce
had dissolved their prior marriages and that they were, therefore, free to
remarry. They were convicted in the North Carolina court of the crime.
In deciding the case, the Supreme Court of the United States proceeded on
the premise that the party obtaining the divorce was domiciled in Nevada.
The Court did not have before it the question of whether the party securing
the divorce was actually domiciled in Nevada. That issue was to be
resolved in the second Williams case.8 The Court held that assuming a
Nevada domicile, North Carolina was required to give the Nevada decree
full faith and credit under the Constitution. The rule of the case was that
a state wherein one spouse is domiciled can grant a decree of divorce which
every other state must accord full faith and credit. It should be further
noted that the defendant spouse had neither appeared nor been served in
Nevada and that respect for such a divorce decree violated the policy of
North Carolina. Yet, though only constructive service had been had in the
divorce proceeding, the second marriage ceremony was held to be validnot bigamous.
How will the Supreme Court treat a Williams I situation if S.1331 is
enacted into law? Is a retreat to Haddock and Atherton in the offing-or
will Williams I stand?
The Senate Report treats of the question specifically at page 7, footnote
21:
"Enactment of S.1331 is not to be cited in derogation of the holding
in the case of Williams v. North Carolina (citation) that the full faith
and credit clause of the Constitution 'requires the extraterritorial recognition of the validity of a divorce decree obtained in accordance with
the requirements of procedural due process in a State by a spouse who
under the law of such State had acquired a bonafide domicile there,
although the spouse who remained in the State of the original matrimonial domicile did not appear in the divorce suit and was not served
with process in the State in which the divorce was granted' . . ."
Clause (4) of the bill requires that the state granting the divorce be the
state of matrimonial domicile or that the defendant be personally subject
to the jurisdiction of the state or that he appear. In Williams I none of
these alternatives was satisfied. Recognizing the scope of the socio-legal
problem with which it was dealing, that is, ex parte divorces rendered by a
state other than that of matrimonial domicile, where there is no personal
jurisdiction, the Senate Committee states at page 6 of its Report:
"... it should be made clear that clause (4) is not intended, and should
not be construed, as setting a pattern for collateral attack, in the Courts
of one State, upon divorce decrees granted in sister States. It is recognized that there are many divorces granted every year, in many States,
under circumstances in which the defendant is not personally subject to
the jurisdiction of the local forum, but the requirement of procedural
due process are met by service by publication. It is recognized that
with a large migratory population, it would be extremely impractical,
as well as unwise, to attempt to require that persons who have changed
their domiciles in complete good faith should be forced to return to their
4 Williams v. North Carolina, 325 U. S. 2Z6 (1945).
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former domiciles in order to get divorces; or to invite collusion by requiring one spouse, in such instance, to secure the voluntary presence of
the other in the State where the divorce action is filed.
"Thus no inference is to be read into this bill requiring nonrecognition of an ex parte divorce obtained in a State other than that of the
matrimonial domicile. The bill is intended to establish minimum
requirements with respect to the extension of full faith and credit under
the Constitution, and its silence beyond the minimums so fixed is not
intended and should not be taken as the basis for any inference whatsoever."
Again, at page 6:
"This language excludes service of a non-resident defendant by publication. In that connection, it might be pointed out that with regard
to service by publication, this bill leaves the situation exactly where it
finds it. Some recent decisions of the Supreme Court have upheld
service by publication; but it is extremely doubtful whether it would
ever be possible to get congressional sanction for a bill which specifically
required full faith and credit for all decrees based solely on service by
publication."
It appears fair to conclude that the Senate Committee has no intention
of reversing by legislation the treatment of the Williams r situation by the
Supreme Court. S. 1331 does not set out to deny full faith and credit; it
at least does not command a restoration of the Haddock doctrine. Yet the
report indicates that the Congress is unwilling to back Williams I by statute.
It does not include the ex parte divorce by way of constructive service within
the terms of the bill. Indeed, the report doubts whether Congress will ever
expressly sanction Williams L The Senate thus wishes to guarantee full
faith and credit to divorce decrees rendered under the circumstances laid
down in the bill, refusing to include Williams I, yet wishing to raise no
unfavorable inference with respect to it.
This legislative attitude is important. By the usual principles of statutory construction, the argument could have been made that since Congress
expressly guaranteed faith and credit to divorce decrees rendered in compliance with the particular dictates of S. 1331, and excluded the Williams I
fact situation, that therefore Congress was impliedly denying constitutional
protection to the ex parte divorce of the Williams I brand. In view of the
expressed legislative intent, however, this contention becomes untenable.
The argument is rebutted by Congress.
Assuming the enactment of S. 1331, and the subsequent presentation of
a case involving an ex parte divorce granted by a state wherein only one
of the spouses is domiciled, and such state is not the matrimonial domicile,
and constructive service is had, it is clear that the Supreme Court is free to
uphold the existing law, as laid down in Williams 7. The Supreme Court
is the final arbiter of the meaning of the full faith and credit clause. Congress is empowered by the Constitution to legislate under that clause. In
the absence of legislative action in regard to the presen-day judicial interpretation of the clause as manifested in Williams !, such judicial definition
survives-and no test of legislative versus judicial authority is reached.
B. Da7* and Sherrer
S. 1331 permits a state other than that of the marital domicile to grant
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a divorce decree which will be protected providing that the defendant spouse
is either personally served in the state or has appeared generally in the cause.
The bill would specifically assure decrees rendered in such circumstances full
faith and credit-assuming, in theory at least, that the state involved is
the domiciliary state of the plaintiff.
This situation came to the Supreme Court in 1938 in Davis v. Davis.
The husband, alleging a Virginia domicile, brought a divorce action in that
state. The defendant wife was personally served in the District of Columbia,
her domicile. She appeared in the Virginia suit and contested her husband's
allegations, including his allegation as to domicile. The court granted the
divorce, finding that the husband was a Virginia domiciliary. The husband
subsequently filed suit in the District of Columbia to have an earlier separation decree modified. The District of Columbia refused recognition of the
Virginia decree on the grounds of lack of jurisdiction. The Supreme Court
reversed. As both parties had appeared, and the domicile question had been
argued, the Supreme Court held that the Virginia divorce was entitled to
faith and credit and was, therefore, res judicata.
Two 1948 decisions of the Supreme Court extended the Davis principle.
These were Sherrer v. Sherrer 0 and Coe v. Coe."
In the Sherrer case, the wife left her husband in Massachusetts and went
to Florida. She instituted divorce proceedings there. The defendant husband was served by mail in Massachusetts. He thereupon retained Florida
counsel, who entered a general appearance and filed an answer denying the
wife's allegations, including the allegation as to her Florida residence. The
husband appeared personally during the proceedings to testify in connection
with a stipulation relating to custody of the children. He was at all times
represented by counsel. However, when the plaintiff introduced evidence to
establish her Florida residence, counsel for the defendant failed to crossexamine or to introduce rebuttal evidence. The Florida court entered a
decree of divorce. The husband did not appeal to the Florida Supreme
Court. He later attacked the divorce in Massachusetts, contending that the
wife did not have a Florida domicile. The Supreme Court of the United
States ruled that he could not attack the decree since it was protected by
the full faith and credit clause of the Constitution. The Court stressed that
the defendant had had his day in court with respect to every issue-including the jurisdictional issue of the wife's domicile. He was entitled to no
second opportunity; there could be no relitigation of jurisdictional facts;
the full faith and credit clause forbids.
The Coe case, decided the same day, reached the same conclusion upon
a somewhat similar statement of facts.
Of the Sherrer and Coe decisions, the Senate Report says, at page 6:
"There does not appear to be any possible reasonable objection to
the provisions of clause (4) of the bill, in the light of the decisions of
the Supreme Court in Sherrer v. Sherrer, (citation), and Coe v. Coe,
(citation), in which cases the Court made it clear that where there has
been a personal appearance by the defendant and opportunity given to
contravert the issue of residence before the court in the action wherein
the original decree was granted, such decree is not subject to collateral
attack in any foreign jurisdiction."
1305 U. S. 32 (1938),
1 ,334 U. S. 343 (1948).
U334 U.S. 378.
The impact of S. 1331, were it to be enacted, upon existing law as to
one-domicile divorces coupled with personal jurisdiction and/or general
appearance, is evident. The stage attained by the Supreme Court, upon
judicial interpretation of the constitutional language, would be unaltered;
rather it would become a matter regulated by statute. Manifestly, Congress intends by clause (4) to clothe Sherrer and Coe divorces with the full
protection of the Constitution. The judiciary would no longer be held in
line by existing interpretation; courts would be required by statutory compulsion to protect such decrees of divorce.
It may be fairly stated that while Congress is reluctant to sanction
Wilkams I, it is equally desirous of insuring Sherrer.
A further effect of the bill, of course, would be the rejection of the dissenting view of Justice Frankfurter in the Sherrer case, namely, that a
divorce decree may meet requirements of due process, and be valid in the
state of rendition, yet12still lack the jurisdictional requisites for faith and
credit to be mandatory.
Any discussion of the probable impact of S. 1331 on Sherrer and Coe
would certainly be incomplete without reference to the very recent decision
of Johnson v. Muelberger.13 The question before the Supreme Court in
the Johnson case was the right of a daughter-legatee to attack in New York
the validity of her deceased father's Florida divorce. The father's second
wife had obtained a Florida decree although the fact was uncontested that
she did not satisfy the jurisdictional ninety-day residence requirement. The
father had appeared by attorney (after personal service in Florida) and
interposed an answer dening certain wrongful acts, but her allegations as to
Florida residence were not questioned by him. The daughter-legatee
attempted to make a collateral attack on the Florida decree in New York
on the domiciliary ground. The Supreme Court held that under Florida
law neither a stranger nor the daughter would be permitted to attack the
divorce, even though not made a party to the action. New York, therefore, could not permit such an attack in view of the full faith and credit
requirement.
To the writer, the Sherrer-Johnson approach seems unfortunate. Take
this situation: Citizens of State A go to State B, but without changing
domicile. Their purpose is solely to evade the domestic relations legislation
of the home state. They obtain a Johnson divorce in State B, whereupon
they return to State A. It is submitted that State A has been deprived by
the full faith and credit clause of jurisdiction over the parties, who happen
to be State A domiciliaries. The home state, A, had no representation in
the proceedings. It is further submitted that such a doctrine places in
jeopardy the ability of any state to regulate, in line with its interest, the
matrimonial relationships of its own citizens at the level of status, marriage,
divorce, annulment, custody and other civil ramifications.
It will be recalled, however, that by current law, if the defendant spouse
appears in the divorce proceedings and contests domicile, or has an opportunity to contest, or admits domicile, or was personally served in the divorce
state, the defendant is then prohibited from making a collateral attackand so is a stranger to the original suit. To this must be appended the well1334 U. S. 343, 368, n. 16.
340 U. S. 581 (1951).
established proposition that if the defendant spouse has neither been served
nor appeared, then he is free to reopen the domicile question. Now, what is
the situation where evidence is lacking on the question whether the defendant
was either served or appeared? The answer came with the recent Supreme
Court holding in Cook v. Cook,14 decided December 3, 1951.
The Supreme Court ruled that, in the absence of evidence to the contrary, the presumption is that the divorce court had jurisdiction over the
parties. The Court refused to allow a collateral attack by a stranger where
it did not appear whether the defendant spouse was served or appeared or
not.
In this regard, interest in subsequent judicial action is sharpened upon
reference to a statement made recently by Judge Goodrich. In a discussion of the Sherrer and Coe decisions in 1949 (prior to the Johnson and Cook
rulings), Judge Goodrich said:
"Certainly the general principle involved in this line of cases does
not detract from the proposition that divorce jurisdiction is not a personal matter to be conferred by consent of the parties for it is clear
that under the Williams holding domicile of at least one of the parties
in the state where the divorce is sought is necessary in order that the
marital status may be properly put in issue." 15
The writer submits that the Johnson and Cook extensions of the SkerrerCoe approach do tend to "detract from the proposition that divorce jurisdiction is not a personal matter to be conferred by consent of the parties."
It will be noted that in the Johnson case, for example, the wife did not
satisfy the Florida ninety-day residence requirement; she had lived in that
state less than sixty days. Obviously, such jurisdictional contests are lukewarm, at best.
In the author's view, the unhappy prospect is that S.1331 will contribute
nothing toward halting the ever-growing development outlined here. The
Senate Report takes a favorable view of Sherrer and Coe, and the terms of
the bill require only personal jurisdiction or appearance. It has been seen
that personal jurisdiction and appearance may amount to little more than
a shadow-substance lacking.' 6 Yet it is unlikely that the courts will find
342
It
U. S. 126 (1951).
5
2 Goodrich, Handbook of the Coxflkt of Laws 400-01 (3rd ed. 1949).
%$See Justice Frankfurter's dissenting opinion in the Sherrer case, 334 U. S. 343, 367.
its practical result will be to offer new inducements for conduct by
Frankfurter says: ". .
parties and counsel, which, in any other type of litigation, would be regarded as perjury, hut
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 forecloses relitigation if there has been an opportunity to litigate once, whether or not it has been availed of,
or carried as far as possible. (Citations omitted). And it applies to questions of jurisdiction
of subject matter as well as that of persons. (Citations omitted). Why 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? Or if more than form is required, how much of a contest must
it be? Must the contest be bellicose or 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? . . . 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."
Particularly incisive is Justice Frankfurter's quaere: ". . . whether today's decision applies
to ex parte Nevada decrees by default, where the defendant later files a general appearance
and the record is made to show jurisdiction amec pro fune. Nev. Comp. Laws (1931-1941 Supp.)
Sec. 9488." at n. 15 of the dissenting opinion.
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in S. 1331 any language sufficiently directory which would dictate abandonment. The bill on the one hand abstains from lending statutory support to
the ex parte divorce out-of-state based on constructive service; it is unfortunate that at the same time the bill would countenance the pre-arranged outof-state divorce based on so-called personal service and/or appearance. The
latter device may operate to limit the proper sphere of the domiciliary state,
an evil no less than the former. In the former the fear is due process;
in the latter it may be said to be misuse of faith and credit. There should
be no greater toleration of the flouting of the one any more than of the
other. This aspect of divorce law is presently fluid; S. 1331 will more than
likely encourage further extensions. In lieu of checking this matter, or, at
least, affording a legislative word of caution, the principle here involved may
be hastened along the road traveled by other useful "devices," so familiar in
other branches of the law. S. 1331 would have done well to have recognized
the development. Statutory draftsmanship which would invite collusion is
hardly to be hailed. An ever-present danger of conflict of laws as to divorce
is that the stage may be reached wherein the state with the laxest divorce
legislation will become the lowest common denominator; the Union appears
to be a step nearer that situation.
Ill. Conclusion
The enactment into law of S. 1331 by the Congress would not significantly alter existing law as to divorce jurisdiction under the full faith and
credit clause of the Constitution.
With respect to divorce decrees granted by states wherein one spouse is
domiciled, and where constructive service is had, the bill would leave the
situation where it finds it. S.1331 would remain aloof, neither supporting
nor derogating present decisions. Admittedly, the framers of the legislation
think that chaos runs rampant in this field of law; whatever chaos which
may be said to exist would certainly flourish as fully after enactment of the
bill as 1it does today-so far as above-described ex parte decrees are concerned. V
The bill is willing to go further with regard to out-of-state decrees where
personal jurisdiction or general appearance can be shown. It guarantees
faith and credit to such divorces, without insisting specifically on a showing that the contest was anything more than a form. This area, then, would
be controlled by statutory law in lieu of judicial decision.
Congress, at the present time, appears unwilling to concur whole-heartedly with the Supreme Court in the Court's adoption of the concept that a
one-domicile divorce may be granted upon the same conditions and under
the same circumstances as may be a divorce granted by the state of matrimonial domicile. At the same time, it is reluctant to challenge the concept.
However, Congress is eager to go thus far: that a state in which one
spouse is domiciled may grant an effective decree upon personal service or
general appearance. Congress will not, though, demand that a genuine
contest be gone through; the door remains open wherein connivance may
enter, connivance bent on thwarting a state's legitimate interest in the marital
relationships of its citizens.
V The Senate Report poses this interesting thought: At page 1, Congress refers to "the
present chaotic situation"; then at page 6, Congress has this to say-"this bill leaves the
situation exactly where it finds it."