Commonly known as the domestic relations exception, the United States Supreme Court's broad disclaimer of federal power over family law matters symbolizes the inherent division of power fundamental to a dual sovereignty. Although the Court announced the disclaimer only in dicta, and no authoritative analysis of its validity exists, federal courts have adamantly declared that the domestic relations exception divests them of jurisdiction over divorce, alimony, and child custody. Within the last twenty years, however, a growing number of federal courts have questioned the validity and contours of the domestic relations exception. This questioning indicates a basic misunderstanding of the role of federal courts in domestic relations law. A reexamination of the domestic relations exception will help to clarify this recent confusion. This investigation necessarily considers the allocation of power between the federal and state governments. After examining the historical development and gradual expansion of the domestic relations exception, this article then explores its validity. This article suggests a framework for analyzing the domestic relations exception. The framework is designed to avoid confusion in the courts, to increase consistency in the application of the exception, and to reach results consistent with the development of the domestic relations exception and principles of comity and federalism.
Sharon Elizabeth Rush, Domestic Relations Law: Federal Jurisdiction and State Sovereignty in Perspective, 60 Notre Dame L. Rev. 1 (1984), available at http://scholarship.law.ufl.edu/facultypub/438