Boardwalk Empire, an Alien in a Human Suit, and Federal Divorce

  •   |   Meghan Freed

Kristen and I have been watching Boardwalk Empire.  Mainlining it, actually.  Last night we tucked in to Season 2, Episode 10, “Georgia Peaches.” In one very-tertiary-to-the-main-action scene last night, Agent Nelson Van Alden (who is at most times scarier than the corrupt pols and gangsters he wants to bring down, and is at all times reminiscent of Edgar the Bug, the alien who wore a human skin disguise in Men in Black) was served with divorce papers.

Now, we watch a lot of legalish shows — The Good Wife, Harry’s Law, White Collar, and Boston Legal all rank among our favorites.  The cinematic license that they take with law or legal procedure doesn’t bother us a bit.  Good television is good television, and accurate civil procedure almost certainly isn’t.

So when Van Aden’s divorce papers inidcated that they were from the federal district court, it wasn’t any desire to whine about historical legal accuracy in television that motivated me to look into it.  Divorces, or dissolutions as the process is technically called in Connecticut, are always the province of state courts rather than federal courts.  I took for granted that was always the case, and now I wondered whether it had always been true.  Was Boardwalk Empire, generally regarded as fairly accurate to the Prohibition period in which it’s set, wrong, or was this an interesting piece of legal history of which I was unaware?

Under Article 3 of the Constitution and the cases that interpret it, there are a few scenarios under which a federal court, as opposed to a state court, has jurisdiction.  The relevant one for our purposes is “diversity jurisdiction.”  The federal district court has diversity jurisdiction over a civil case in which both the plaintiff (here Mrs. Van Alden) and defendant (here Agent Van Alden) are citizens of different states and the total amount in controversy meets a congressionally set amount.  (That minimum was originally $500 in 1789,  and is currently $75,000.  In 1921, when Agent Van Alden was served, the minimum was $3,000.)

The Van Alden’s likely had at least $3000 in dispute — especially given that the good Agent was skimming off the top of the bootleg booze he confiscated in the U.S. government’s name.  They also met the diversity requirement.  Mrs. Van Alden was bored and lonely somewhere in New York, and Mr. Van Alden was murdering his co-workers and financially supporting the adorable result of a (really yucky) one night stand down in Atlantic CIty.

As Van Alden’s seemingly meet the standard for federal diversity jurisdiction, Mrs. Van Ausdale’s service should have been perfectly correct.  There is nothing in the Constitution (or federal statute) that would prohibit a U.S. District Court from hearing a diversity divorce case.

But it’s true, and has been true since long before 1921, that United States’ federal courts do not grant divorce decrees, distribute marital property at or after diovrce, or award or modify alimony or child custody.

In 1859, the Supreme Court in Barber v. Barber wrote: “We disclaim altogether any jurisdiction in the courts of the Inited State upon the subject of divorce, or for the allowance of alimony . . . .”  In the 1890s, the Supreme Court reiterated the Barber holding, disclaiming jurisdiction over “the whole subject of husband and wife, parent and child.”  In re Burrus, 136 U.S. 586, 593-94 (1890); accord Simms v. Simms, 175 U.S. 162, 167 (1899).

So, no federal summons for Agent Van Alden.  But more Boardwalk Empire for us.

Freed Marcroft LLC

Freed Marcroft LLC