Article by Linda J. Silberman
This Article surveys the choice-of-law rules applicable in marriage and divorce cases in the United States with a comparative eye toward what is transpiring in Europe. The Article looks at the role of applicable law in marriage, divorce, custody, and support. It observes that in matters of the applicable law on marriage, the national laws of many European countries show a greater sensitivity to the regulatory policies in the state of the habitual residence or domicile of the parties at the time of the marriage than does the approach by many states in the United States. The Article suggests that these models from Europe offer a lesson on how to balance the competing interests of the respective states with regard to marriage regulation. With respect to divorce, the Article notes that the constitutional obligation of recognition of sister-state judgments in the United States has resulted in widespread forum shopping for favorable law in divorce cases because no choice-of-law inquiry is ever made in divorce cases and the forum merely applies its own law. The proposed Rome III Regulation for the European Union ostensibly offers a different model in providing choice-of-law rules for divorce as well as broad party autonomy as to the applicable law. However, as the Article shows, because Rome III does little to separate jurisdiction and applicable law, in the end choice of law does not play a very meaningful role. Finally, the Article explains how existing U.S. rules on jurisdiction and applicable law in custody and support cases would need to be changed in light of various worldwide Hague Conventions to which the United States may want to become party.
About the Author
Linda J. Silberman. Martin Lipton Professor of Law, New York University School of Law. B.A. 1965, J.D. 1968, University of Michigan.
Citation
82 Tul. L. Rev. 1999 (2008)