Could Melania Actually Divorce Sitting President Trump?

TV personality Chelsea Handler recently said Melania Trump would be an “American hero” if she divorced Donald. But as a sitting president, could Trump actually be sued for divorce? Does a state court have the authority to enter orders against the President of the United States?

Family and politics never seem to mix well together. First ladies have often been forced to suffer through their husbands’ long hours, stressful campaigns, and sometimes, extramarital affairs. But not one has ever tried to divorce her husband while in office. The possibility raises some interesting legal questions.

On Monday, May 22, 2017, “The View” co-host Chelsea Handler was discussing the latest buzz about Melania and Donald Trump. When the couple arrived at Ben Gurion International Airport in Israel, a video appeared to show Melania swatting away Donald’s hand. She said:

“I have a fantasy. I just want Melania to finally come out and divorce him. She would be an American hero. . . . We would embrace her if she just said, ‘Listen, this guy’s disgusting, and I know all of his dirty secrets and I’m willing to tell everybody.’”

This isn’t the first time Melania Trump’s facial expressions, body language, or actions have led commentators to believe she is unhappy in the marriage. Speculation that she may even be the victim of mental and emotional domestic violence triggered the Twitter hashtag #FreeMelania, which appeared on some signs during the January Women’s March.

Divorce and Presidents

Donald Trump isn’t the first divorcee to become President. In this, he follows GOP favorite Ronald Reagan, who divorced actress Jane Wyman and married Nancy Reagan nearly thirty years before taking the oath of office in 1981. Reagan’s marital history was not a problem during his campaign. However, 18 years earlier, in 1964, Gov. Nelson A. Rockefeller’s one-year-old divorce and swift remarriage was thought to stand between him and the Republican presidential nomination. But what Trump lacks in originality, he makes up for in numbers. Melania is his third wife, after Ivana Zelnickova (married 1977-1992) and Marla Maples (married 1993 to 1999).

Other U.S. Presidents appear to have given their First Ladies reason to file divorce paperwork, though. Franklin D. Roosevelt and Bill Clinton both were publicly exposed for having affairs during their political careers. But both kept their marriages together, if only for the sake of their political careers.

Divorcing a Sitting President

If Melania chooses to take Handler’s suggestion, the story will be a little bit different. No one has ever tried to divorce a sitting President while he held office before. And that has some wondering if it could even be done.

The issue is a doctrine called “Presidential Immunity”. This is a legal defense that says the President cannot typically be sued in civil court. Before getting into the details, let’s be clear: divorce is a civil lawsuit. Even though the procedures and the remedies are very different in a divorce than a negligence claim or a contract suit, they are all adversarial proceedings filed in state civil court. So is it possible to sue a sitting President for divorce?

In 1997, a very famous Supreme Court case dealt with the reach of Presidential Immunity. In Clinton v Jones, former state employee Paula Corbin Jones claimed that President Bill Clinton sexually harassed her, violated her constitutional rights, and publicly defamed her while he was serving as the Governor of Arkansas. To be clear, she filed a civil lawsuit in federal court for constitutional and other claims based on the President’s unofficial behavior before he took office. Clinton’s private attorneys filed a motion to dismiss or stay (delay) the case, citing absolute Presidential Immunity. They said that Jones, and other potential civil plaintiffs, could not proceed with civil lawsuits against the President while in office, but that the case should be postponed until his term was over.

The Supreme Court disagreed. It said Presidential Immunity only applied to the Executive’s official acts:

“With respect to acts taken in his ‘public character’ — that is official acts — the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.”

State Lawsuits and Federal Executives

There are few civil actions more clearly “private” than a divorce. However, there is one more distinction that could close the door on divorcing a sitting President. Divorce is inherently a state law issue. Marriage licenses are issued by the states, and each state has its own laws and procedure that govern how those marriages dissolve. In deciding Clinton, the Supreme Court explicitly refused to state “whether a comparable claim might succeed in a state tribunal,” where the President’s attorneys could rely on arguments of federalism and comity (which prevent states from ordering the federal government to act in particular ways).

President Trump already has legal teams exploring this issue. Trump was facing at least 75 lawsuits as of October 2016. While some have undoubtedly settled, at least one continues. Summer Zervos, a former contestant on “The Apprentice”, claims that Trump sexually assaulted her in 2007, and defamed her when the allegations came to light. Her lawsuit, filed in New York state court, raises the question of whether state judges can order a President to do things like show up for hearings, give testimony, or provide documents in discovery.

The Trump legal team has put forth many of the same arguments as the Clinton attorneys (an irony not lost on this writer), saying that these state-level civil lawsuits will prevent him from doing his job. The success or failure of these arguments will determine whether Melania even has the option to file for divorce in 2017, or if she could be forced to endure an unwanted marriage “four more years.”

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She handles divorce, custody, and other domestic matters. If you are looking to get out of an unwanted marriage, contact Schmidt & Long today to schedule a consultation.

Image Source: Marc Nozell via Wikimedia Commons