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.
2023] MARRIAGE & DIVORCE 673
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