There are a lot of intersections between the Constitution and family law. Two law professors offer one constitutional right not considered much: the right to unmarry. Some would refer to it as the right to bifurcate your divorce case. And as an interesting thought on the coronavirus, are we in World 2.0?
It’s a Constitution We’re Expounding
Reason discusses two law school professors, Brian L. Frye and Maybell Romero, want to marry. But they have a problem. They can’t marry each other because they’re both currently married to other people.
They want to end their existing marriages, and their spouses have even agreed to divorce. But the government will not allow them to re-marry until it decides to dissolve their current marriages.
The Constitution protects the fundamental right to marry the person of your choice, so long as the choice is mutual. But the government can and does regulate the dissolution of marriages.
While people can divorce, they need the government’s permission. A marriage isn’t over until a government official says it is. And a person cannot remarry until their divorce is final.
During the quarantine brought on by the coronavirus, the professors believe that people should be able to end a marriage immediately, and start a new one whenever they want as a matter of constitutional right.
Florida Bifurcation of Divorce
I’ve written about various family law issues before. Sometimes, people need a divorce, and like law professors, need one fast. Can you get an immediate divorce?
Put another way, when can a family law judge enter a dissolution of marriage final judgment, but reserve jurisdiction to determine all of the other issues in a divorce relating to custody, support, and property rights for later?
In a highly unusual procedure, there’s also a trifurcated dissolution. The family law court first dissolves the marriage. Then separates the remainder of the financial issues, and reserves on timesharing and child support for the children.
The real issue is bifurcation, and it is a split procedure of entering a final judgment to divorce and keep power over the case to determine all the other issues. The practice is rare and limited to special cases.
In general, family law judges try to avoid this kind of split procedure. The law is designed for one final judgment and one appeal of divorce. Splitting the process can cause a lot of legal and procedural problems which result in delay and additional expense to people.
So, in Florida this split procedure is really only used when it is clearly necessary for the best interests of the parties or their children. The convenience of two law professors to remarry would not justify its use.
The Constitutional Right to Divorce
Because of the quarantine, Professors Frye and Romero hit on a timely and recurring problem in family law: people are stuck in marriages they want out of, but cannot remarry until a government official has permitted it.
State law determines who can marry, when they can marry, and how they can marry, subject to constitutional limitations. Different states have regulated marriage differently, some more liberally than others.
Historically, the regulation of marriage and divorce has been very unjust. In Pace v. Alabama (1883), the U.S. Supreme Court held that a state law prohibiting interracial sexual conduct did not violate the Equal Protection Clause. Plessy v. Ferguson (1896) held that state laws prohibiting interracial marriage were constitutional. Loving v. Virginia, 388 U.S. 1 (1967) ended the ban. We just went through a similar tortured history with same sex marriage.
In part because of the history of unjust state laws, the professors believe people should be able to end a marriage whenever they want. In fact, they believe it is a constitutional right.
If marriage is a fundamental right, then unmarriage must also be a fundamental right. After all, the Supreme Court held in Obergefell that marriage is a fundamental right because it expresses individual autonomy and honors the mutual desire of two people to be joined in perpetual union.
When you file a marriage certificate, you are married (ed. Florida has a 3-day waiting period after issuance of the license before you can get married). But when you file a divorce petition, you aren’t divorced.
The fundamental right to marry recognizes that the Constitution prohibits the government from telling people who they have a right to love, and requires the government to make the economic and social benefits of marriage available to everyone who wants to exercise them.
Interesting Coronavirus Thoughts: World 2.0
Interesting thoughts from the website Marginal Revolution. We are living in a new age. But is it World 2.0?
| World 1.0 | World 2.0 |
| Physical | Digital |
| Suit, tie, wristwatch, office | Good lighting, microphone, webcam |
| Commute + traffic jams | Home + family |
| Cities | Internet |
| $100k for college | Not paying $100k for a webinar |
| Too much technology | Too little technology |
| Assume some government competence | Assume zero government competence |
| WHO | Who? |
| 20th century | 21st century |
The abstract on the “Right to Unmarry” is here.
