Felix Frankfurter

“ It cannot be assumed, by judicial notice as it were, that absent spouses value their alimony rights more highly than their marital rights. Factually, therefore, both situations involve the adjudication of valuable rights of an absent spouse, [1] and I see no reason to split the cause of action and hold that a domiciliary State can ex parte terminate the marital relation, but cannot ex parte deny alimony. 'Divisible divorce' is just name-calling. ”

“ The Court, however, solves all with the statement, 'It has long been the constitutional rule that a court cannot adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.' This is an artful disguise for labeling the action with the question-begging phrase, 'in personam.' A dogmatic, unanalyzed disregard of the difficulties of a problem does not make the problem disappear. Strictly speaking, all rights eventually are 'personal.' For example, a successful suit in admiralty against a ship results of course not in loss to the ship but to its owner. ”

“ To begin with, it cannot be pretended that New York is not discriminating against alimony adjudications in all out-of-state ex parte divorces, for a divorce granted to a husband in New York against a wife who is not served personally in New York is not ex parte if the wife is a New York domiciliary. ”

“ The absent spouse need no longer appear in the divorcing State in order to be present when an adjudication is made. She (or he) may sue wherever she can serve the other spouse or attach his property. What will happen in States that grant alimony only as incident to a divorce? Most States do not have statutes like the New York statute involved in the present case. Would this Court require any State in which one spouse catches another to entertain a cause of action for alimony? ”

“ We are also told that 'the interest of the wife in not becoming single and penniless is greater than her interest in not becoming single.' This is doubtless a correct statement of fact and might furnish a basis for legislation of a kind not at issue in this case, since the New York law is based on its right to disregard all ex parte alimony decrees and not on an interest it may have in the indigent condition of former wives. ”

“ Whereas previously only the State of 'matrimonial domicile' could grant an ex parte divorce and alimony, now any domiciliary State can grant an ex parte divorce, but no State, even if domiciliary, can grant alimony ex parte when it grants a divorce ex parte. ”

“ The interests of independent human beings, the children, are involved. Also, insofar as the spouses' interests are concerned, the divorce may terminate their relations with each other as husband and wife, but it cannot terminate their relation to their children. ”

“ I note this concern for 'property rights,' but I fail to see why the marital relation would not be worthy of equal protection, also as a 'personal claim or obligation.' It may not be translatable into dollars and cents, but that does not make it less valuable to the parties. ”