Originally appeared in Vol. 35, 2023 The Thirteenth Amendment in Family Law
Introduction
At first blush, raising Thirteenth Amendment concerns in a family law case seems almost blasphemous, a trivialization of our original sin of slavery. Nonetheless, the court’s ability to coerce both payment and specific behavior in a family law case does raise the spectre that in some instances, the court has over-stepped its authority into constitutionally forbidden action. This article seeks to explore the limits, if any, of the court’s general and coercive powers under the Thirteenth Amendment in family law cases, focusing on child support and spousal support. First, the article will give a short primer on the history of Thirteenth Amendment jurisprudence. Second, the article will explore the arguments litigants have made under the Thirteenth Amendment to avoid paying child support or spousal support altogether, to avoid seek-work orders, to avoid incarceration as a punishment for failure to pay, either by civil or criminal contempt, or to avoid garnishment of wages. The article will conclude that the only successful arguments concerning the Thirteenth Amendment are those that challenge seek-work orders that demand a party seek and find a particular job in a particular field, or that a party employ the other party.