Gender in the Context of Same‐Sex Divorce and Relationship Dissolution

• Author: Edward Stein,Suzanne A. Kim
• Date: 01 July 2018
• DOI: http://doi.org/10.1111/fcre.12355
• Published date: 01 July 2018

GENDER IN THE CONTEXT OF SAME-SEX DIVORCE

AND RELATIONSHIP DISSOLUTION

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Suzanne A. Kim*and Edward Stein

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender

dynamics facing same-sex couples upon divorce or other relationship dissolution. When same-sex couples marry, the legal

system and society at large may project conceptions of gender onto same-sex couples, often in a manner that conflicts with

couples’intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of

dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of

gender on the dissolution of same-sex relationships.

Key Points for the Family Court Community:

•In the context of same-sex relationships, the legal system may apply standards or ideals upon couples in a manner in

tension with the couple’s expectations, in part because of assumptions rooted in the historically gendered nature of

marriage.

•Gender and gender dynamics may affect the bases for dissolution, the financial awards made in the context of dissolu-

tion, and the determination of child custody.

•Researchers, judges, practitioners, and policy makers would do well to attend to the role of gender and dynamics in

the context of the dissolution of same-sex relationships.

Keywords: Annulment;Bisexual; Custody; Divisionof Labor; Divorce; Fault Divorce; Gay;Gender; Finances; Lesbian; Mar-

riage; No-Fault Divorce;Parenting; Property Division; Sexual Orientation; Spousal Support; and Transgender.

For much of its existence, marriage in the United States has been highly gendered. Until 2003,

U.S. law uniformly treated marriage as exclusively for couples consisting of one man and one

woman (Goodridge v. Department of Public Health, 2003). Beyond the gender requirements for

entry into marriage, both law and society have historically treated the roles that people play in

marriage as gender-based, with the role of the husband envisioned as distinct from that of the wife.

The gendered character of marriage extended to divorce as well, with legal decision making about

obligations and rights post-marriage displaying gendered differences.

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The gendered character of

marriage and divorce has, however, changed as the law began to treat men and women equally, both

in marriage and in general. Toward the end of the 20th century, most (but not all) of the structural

gender asymmetries in family law had been eliminated (Kay, 2000).

Now that same-sex marriage has been legalized throughout the country (Obergefell v. Hodges,

2015), it might seem that marriage is no longer gendered because marriage is no longer available

only to couples consisting of one man and one woman. We suggest that marriage is likely to remain

gendered in a variety of ways in the near term, although how it may continue to be gendered over

time is not clear. We focus here on some ways in which gender may continue to play a role in the

dissolution of the relationships of same-sex couples in the United States,

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specifically with respect

to (i) the grounds for divorce, dissolution, and annulment; (ii) the financial aspects of relationship

dissolution; (iii) the custody of children; and (iv) the social experience of divorce and relationship

dissolution more generally. We draw on existing social scientific and legal research, but because

same-sex marriage has only been legal for just over a dozen years and in place across the countr y

Corresponding: kimsa@law.rutgers.edu; ed.stein@yu.edu

FAMILY COURT REVIEW, Vol. 56 No. 3, July 2018 384–398

© 2018 Association of Family and Conciliation Courts