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Leaving Home? Domicile, Family, and Gender
Susan Frelich Appleton
Just as longstanding tradition has made family law generally, and marriage in particular, a matter of state — not federal — law, longstanding tradition has provided an answer to the choice of law issues that the Windsor majority avoided: domicile. Domicile has served as the mechanism for the distribution among the states of regulatory authority over families. Despite Windsor’s silence, domicile routinely has played a decisive role in determining which state gets to control a wide range of family law issues — from conventional matters like marriage, divorce, legitimacy, and spousal immunity to more contemporary and unusual problems like the status of posthumously conceived children for purposes of Social Security survivors’ benefits and the applicability of exclusive tribal jurisdiction over adoptions under the Indian Child Welfare Act.
Domicile thus has endured as a foundation of family law, typically taken for granted and rarely questioned, especially after updates purporting to correct its expressly patriarchal treatment of married women. Yet, even with such updates, domicile is not a gender-neutral construct. Rather, domicile continues to exemplify a regime of domestic relations law from a mostly bygone era, when the state imposed tight restrictions on intimate life and gender-based rules and roles prevailed. Although family life and family law have changed enormously in recent years, the doctrine, significance, and gendered character of domicile have failed to keep pace with such transformation.
Perhaps until now: Now, Windsor’s silence about domicile, the diminished role of domicile in some of Windsor’s legal aftermath, and new rules for divorce that jettison domicile as a jurisdictional requirement for some same-sex couples all invite a fresh look at the place of domicile today — not just in the particular context of marriage equality but throughout family law. This Article begins this re-examination.