When Does Federal Law Govern Divorce Proceedings?

As a general rule, domestic issues are exclusively within the province of the states. Although diversity of citizenship may provide federal jurisdiction in civil cases, the courts have long applied a “domestic relations exception” to this rule in deferring to the state courts. Despite this, there are provisions of federal law that affect divorce and custody proceedings, and recent U.S. Supreme Court decisions have indicated that domestic cases may be taken up by the federal courts when a “federal question” is involved such as a violation of constitutional rights by the state courts.

Military Divorces

The federal courts do not have jurisdiction over military divorces, but divorces of military personnel are governed by a mixture of state and federal laws. For example:

  • The Servicemembers Civil Relief Act (SCRA) allows an active-duty servicemember to ask for a stay of their case if their military service affects their ability to participate in the proceedings, requires the court to appoint an attorney to represent the servicemember if they do not appear in court, and allows servicemembers to reopen default judgments under certain circumstances.
  • Servicemembers may have expanded choices of venue and may file for divorce in 1) The state where the servicemember resides, 2) The state where the spouse resides, or 3) The state where the servicemember is currently stationed.
  • The Uniformed Services Former Spouses’ Protection Act (USFSPA) provides that state courts may treat military retirement benefits as either the property of the servicemember or the joint property of the servicemember and their divorced spouse. It does not dictate how the benefits should be divided, but it gives the state courts discretion to divide the assets as they see fit.
  • The military also has rules that govern alimony and child support obligations on the part of servicemembers. The military does not dictate to the states how alimony or child support should be awarded, but they make it easier for former spouses to collect alimony and child support.

The Domestic Relations Exception to Diversity Jurisdiction

Federal courts have jurisdiction to hear cases where the amount in controversy is greater than $75,000 and where the parties to the lawsuit include citizens of different states or subjects of a foreign government. Despite this, the federal courts have long abstained from deciding domestic issues including divorce, alimony, or child support citing a domestic relations exception to diversity jurisdiction in federal courts. The Supreme Court’s decisions that helped to shape the domestic relations exception include:

  • Barber v. Barber (1858) held that the federal courts do not have jurisdiction to grant or modify a divorce or alimony order, but they do have jurisdiction to enforce an alimony order that has been previously awarded.
  • In Re Burrus (1890) extended the domestic relations exception to matters involving child custody.
  • Popovici v. Agler (1930) reaffirmed the domestic relations exception in diversity cases and held that the federal courts have no jurisdiction to hear a case involving divorce and alimony between an American citizen and a foreign ambassador.
  • Ankenbrandt v. Richards (1992) held that the domestic relations exception does not cover a tort action between family members and that the federal courts have jurisdiction to hear a diversity case filed by a mother on behalf of her daughters that seeks monetary damages for torts committed against the daughters by their father and their father’s girlfriend.

Is There a Domestic Relations Exception to Federal Question Jurisdiction?

It appears that there is not although the law is not yet clear on this issue. In U.S. v. Windsor (2013), the United States Supreme Court confused the issue in its analysis while striking down the federal Defense of Marriage Act (DOMA) as unconstitutional. The Court’s reasoning was ultimately based on two conflicting views of the domestic relations question: 1) The authority to regulate domestic issues, including the definition of who is permitted to marry, is reserved for the states and the federal government should not have interfered by enacting DOMA; and 2) DOMA violates the Fifth Amendment rights of the citizens of New York where New York recognized a resident’s out-of-state same-sex marriage and the federal government refused to permit the same-sex surviving spouse to claim federal benefits upon their spouse’s death.

In Obergefell v. Hodges (2015), the Supreme Court again accepted jurisdiction in a domestic relations case based on a federal question. The Court held that the Fourteenth Amendment requires a state to 1) Issue marriage licenses to same-sex couples when requested, and 2) Recognize out-of-state marriages of same-sex couples. Although the subject matter of Windsor and Obergefell were squarely within the province of domestic relations, jurisdiction was based on the federal question of whether a constitutional right had been violated, and it was not based on diversity jurisdiction.

It appears that the Supreme Court will permit federal courts to hear matters regarding domestic relations when the federal courts’ jurisdiction is based on a federal question. The filing, granting, and modification of divorces, alimony, or child support are still prohibited under the domestic relations exception when jurisdiction is based solely on diversity.


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