Page:Harvard Law Review Volume 12.djvu/50

30 HARVARD LAW REVIEW. of land title, and yet but little discussed in the East. A number of the States have divorce procedure statutes based, in a certain sense, upon the theory of alimony, but differing widely from that theory, and providing, in one form or another, for an allotment of prop- erty of one of the parties to the other party. These statutes differ widely in their particulars, some relating only to real estate, some to both real and personal estate ; some professing to allot property by their own force, without aid from the decree of the court, others leaving the allotment to the court.-^ In some of these statutes, no distinction is drawn between petitioner and respondent, or between husband and wife, but property of either may be allotted to the other. It is, of course, not uncommon for a husband or wife who wishes a divorce to create a domicil in a distant State with a view to a divorce ; and even where an effectual change of domicil is not effected there may be a colorable change. Under the doctrine which now generally prevails in this country, and may fairly be said to be established, a decree of divorce effectual to dissolve the marriage tie may be made without such personal jurisdiction over the respondent, whether husband or wife, as would be essential to an ordinary personal judgment.^ Moreover, a wife physically ab- sent may have been physically a resident, and may in law, by reason of the marriage, still be a citizen, of the State, taking juris- diction ; and even where a respondent wife has never been physi- cally within such State, still, if she is living apart from her husband without sufficient cause, the courts of the State of his residence may have jurisdiction over her, as over any other citizen, and may hold her, by substituted service, to a decree, operative in personam^ and operative upon her property outside the State, through the medium of a judgment in another State based upon the original judgment. The whole question of divorce and its incidents is one of great complication ; but there is no doubt that the petitioner may be bound, in respect of his or her property outside the State, by a decree of allotment of it to the respondent ; and there are situations under which he or she might get a judgment probably enforceable as against real estate of the respondent in another State. It would seem to follow that where one step in a chain of title is divorce in another State, the examiner should, if his examination is 1 2 Bishop, Marriage, Divorce, and Separation, §§ 1 117 et seq. 2 2 Bishop, Marriage, Divorce, and Separation, §§ 137, 153, 185; 2 Black, Judg- ments, §§ 925, 928, 932 ; Pennoyer v. Ne£f, 95 U. S. 714, 734.