Marriage and divorce

• Author: Jessica Pacwa
• Pages: 671-732

MARRIAGE AND DIVORCE

EDITED BY JESSICA PACWA

I. INTRODUCTION.......................................... 671

II. SAME-SEX MARRIAGE .................................... 672

A. BACKGROUND ...................................... 672

B. THE OBERGEFELL HOLDING............................. 673

C. IMPLEMENTATION AND ENFORCEMENT CHALLENGES SINCE

OBERGEFELL ....................................... 675

III. STATE REGULATION OF MARRIAGE ........................... 676

A. JURISDICTION AND RECOGNITION ......................... 677

B. RIGHTS RESULTING FROM FORMATION ..................... 680

C. PLURAL MARRIAGE .................................. 686

D. COVENANT MARRIAGE ................................ 688

E. STATUS OF CIVIL UNIONS AND DOMESTIC PARTNERSHIPS . . . . . . . . 689

F. CHILD MARRIAGE ................................... 690

IV. DIVORCE AND DISSOLUTION STRUCTURES ....................... 691

A. DIVORCE STRUCTURES ................................ 691

1. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 692

2. Fault-Based Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . 692

3. No-Fault Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 694

4. Dissolution of Covenant Marriage . . . . . . . . . . . . . . . . . . 695

B. ALTERNATIVE REMEDIES............................... 696

1. Remedies Under Tort Law . . . . . . . . . . . . . . . . . . . . . . . . 696

2. Alternative Dispute Resolution . . . . . . . . . . . . . . . . . . . . 697

C. DIVORCE ISSUES FOR SAME-SEX UNIONS ................... 698

D. NON-TRADITIONAL FAMILY STRUCTURES ................... 699

V. FORUM SHOPPING ....................................... 701

VI. CONCLUSION ........................................... 701

APPENDIX A: SELECTED MARRIAGE REGULATIONS BY JURISDICTION . . . . . 703

APPENDIX B: SELECTED DIVORCE REGULATIONS BY JURISDICTION . . . . . . . 725

I. INTRODUCTION

Though many see marriage as private, religious, and sacred, marriage is a legal

relationship regulated by the state. State regulation of the formation and dissolu-

tion of marriage must continually respond to changes in societal objectives, cul-

tural diversity, and a shared understanding of marriage as both a legal and

spiritual construct. This Article will focus on the evolving role of state supervi-

sion and federal oversight in relation to marriage and divorce. Part II examines

671

Obergefell v. Hodges, the 2015 Supreme Court case that upheld same-sex mar-

riage as valid throughout the nation and its implication on related areas of law, as

well as implementation challenges since the legalization of same-sex marriage.

Part III considers the regulation of marriage, including restrictions on child mar-

riage, and the economic and societal benefits derived from marriage. Part IV dis-

cusses recent developments in divorce law, including the rise of no-fault divorce

statutes, uses of tort law and alternative dispute resolution for remedies, the disso-

lution of same-sex marriages, and issues surrounding non-traditional family

structures. Part V introduces the issue of forum shopping as it pertains to state

marriage and divorce laws.

II. SAME-SEX MARRIAGE

A. BACKGROUND

The first case demanding equal treatment with regard to marriage for same-sex

couples was litigated in the early 1970s; the petitioners were unsuccessful.

1

Between

that time and 2015, same-sex couples continually challenged the concept that mar-

riage was between a man and a woman in an effort to gain the same recognition and

benefits for their relationships as those conferred upon opposite-sex couples. Both

individual states and Congress resisted those challenges, initiating efforts to restrict

marriage to opposite-sex couples with varying degrees of success.

In 2013, the Supreme Court struck down Section 3 of the Defense of Marriage

Act (DOMA), which had restricted the federal definition of marriage to include

only those unions between a man and a woman, and limited the term “spouse” to

refer only to a person of the opposite sex.

2

The Court held that DOMA was

unconstitutional because it deprived same-sex couples of equal liberty, which is

protected by the Fifth Amendment.

3

DOMA’s definition of marriage controlled

over 1,000 federal laws in which marital or spousal status is addressed; as such,

Section 3 of DOMA had effectively restricted same-sex couples’ access to federal

benefits, even if they were legally married according to state law.

4

Although Obergefell made DOMA unenforceable, the law’s validity could eas-

ily be revived. If the Supreme Court were to overturn Obergefell, the legality of

same-sex marriages would fall back to preexisting state laws

5

State Same-Sex Marriage Laws Without Obergefell, NAT’L CONF. OF STATE LEGISLATURES (July

2022), https://perma.cc/VGW9-WPT3.

—a probability

Justice Thomas made clear in his concurring opinion in Dobbs v. Jackson

Women’s Health.

6

Sheryl Gay Stolberg, Thomas’s Concurring Opinion Raises Questions about What Rights Might be

Next, N.Y. TIMES (June 24, 2022), https://perma.cc/AS4X-Q4HS.

Faced with this prospect, the House of Representatives passed

the Respect for Marriage Act (RFMA) on July 19, 2022.

7

The Act promises legal

1. See Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).

2. 1 U.S.C. § 7 (West, Westlaw through Pub. L. No. 117-262).

3. See United States v. Windsor, 570 U.S. 744, 775 (2013).

4. Id. at 772.

5.

6.

7. Respect for Marriage Act, H.R. 8404, 117th Cong. (2022).

672 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:671

protections for marriage equality.

8

Bipartisan Group Leads Introduction of Respect for Marriage Act, HOUSE COMM. ON THE

JUDICIARY (July 18, 2022), https://perma.cc/5T9Q-5HXD.

The RFMA would repeal and replace DOMA

provisions that define marriage as only between a man and a woman. Moreover,

the Act would prohibit states from denying full faith and credit to an out-of-state

marriage based on sex, race, ethnicity or national origin, create a private right of

action for any individual harmed by a violation of the Act, and grant the Attorney

General the authority to pursue enforcement actions.

9

Bill to Protect Same-Sex and Interracial Marriage Passes Overwhelmingly in the House, NPR

(July 19, 2022, 6:58 PM), https://perma.cc/D5Q4-GB2S.

Notably, the RFMA would

not “codify” Obergefell since it does not require every state to license same-sex

marriages.

10

Mark Joseph Stern, The New Marriage Equality Bill Doesn’t Just Repeal DOMA. It Does

Something Better, SLATE (July 21, 2022, 1:51 PM), https://perma.cc/EQN5-TBMJ.

Practically, the RFMA ensures that every same-sex and interracial

couple remains protected even if their own state nullifies their marriage.

11

B. THE OBERGEFELL HOLDING

In 2015, the Supreme Court decided Obergefell v. Hodges, a case that would

fundamentally change the landscape of marriage equality for same-sex couples

across the nation. When James Obergefell’s long-time partner, John Arthur, was

diagnosed with ALS, the two resolved to marry before Arthur died.

12

They trav-

elled from Ohio to Maryland, where same-sex marriage was legal, to fulfill their

mutual promise.

13

Three months later, Arthur passed away.

14

Ohio law did not

recognize the marriage and refused to list Obergefell as the surviving spouse on

Arthur’s death certificate.

15

Obergefell brought suit to be shown as the surviving

spouse and took his case all the way to the Supreme Court.

16

In a 5-4 majority

opinion, the Court held that “same-sex couples may exercise the fundamental

right to marry in all States. . . [and] there is no lawful basis for a State to refuse to

recognize a lawful same-sex marriage performed in another State.”

17

This deci-

sion nullified state bans on same-sex marriage as well as state bans on official rec-

ognition of out-of-state same-sex marriages.

18

Lyle Denniston, Opinion Analysis: Marriage Now Open to Same-Sex Couples, SCOTUSBLOG

(June 26, 2015, 3:01 PM), https://perma.cc/7E3V-885A.

The first issue that the Court considered was whether the Fourteenth

Amendment required a state to grant a marriage license between two people of

the same sex.

19

The Court examined the Due Process Clause of the Fourteenth

Amendment, which provides that no state “shall deprive any person of life,

8.

9.

10.

11. Id.

12. Obergefell v. Hodges, 576 U.S. 644, 658 (2015).

13. Id.

14. Id.

15. Id.

16. Id.

17. Id. at 681.

18.

19. Obergefell, 576 U.S. at 656.

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