Marriage & Divorce

• Author: Kelsey Henderson, Rachel Keirstead, Amanda Maze-Schultz, Suzie McKelvey, Lettie Rose, and Melissa Zubizarreta
• Pages: 361-432

MARRIAGE & DIVORCE

EDITED BY KELSEY HENDERSON, RACHEL KEIRSTEAD, AMANDA MAZE-SCHULTZ,

SUZIE MCKELVEY, LETTIE ROSE, AND MELISSA ZUBIZARRETA

I. INTRODUCTION.......................................... 361

II. SAME-SEX MARRIAGE .................................... 362

A. BACKGROUND ...................................... 362

B. THE OBERGEFELL HOLDING ............................. 362

C. IMPLEMENTATION AND ENFORCEMENT CHALLENGES SINCE

OBERGEFELL ....................................... 364

III. STATE REGULATION OF MARRIAGE ............................ 366

A. JURISDICTION AND RECOGNITION ......................... 366

B. RIGHTS RESULTING FROM FORMATION ..................... 369

C. PLURAL MARRIAGE .................................. 375

D. COVENANT MARRIAGE ................................ 377

E. STATUS OF CIVIL UNIONS AND DOMESTIC PARTNERSHIPS ........ 378

F. CHILD MARRIAGE ................................... 379

IV. DIVORCE AND DISSOLUTION STRUCTURES ....................... 380

A. DIVORCE STRUCTURES ................................ 380

1. Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381

2. Fault-Based Divorce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381

3. No-Fault Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383

4. Dissolution of Covenant Marriage . . . . . . . . . . . . . . . . . . 384

B. ALTERNATIVE REMEDIES ............................... 385

1. Remedies Under Tort Law . . . . . . . . . . . . . . . . . . . . . . . . 385

2. Alternative Dispute Resolution . . . . . . . . . . . . . . . . . . . . . 386

C. DIVORCE ISSUES FOR SAME-SEX UNIONS ................... 387

D. NON-TRADITIONAL FAMILY STRUCTURES ................... 388

V. FORUM SHOPPING........................................ 390

VI. CONCLUSION ........................................... 390

APPENDIX A: SELECTED MARRIAGE REGULATIONS BY JURISDICTION . . . . . . . . . 392

APPENDIX B: SELECTED DIVORCE REGULATIONS BY JURISDICTION............ 421

I. INTRODUCTION

Despite its inherently personal nature, marriage is a legal relationship regulated

by the state. Many see marriage as private, religious, and sacred, which puts the

state in a difficult position when regulating the institution. State regulation of the

formation and dissolution of marriage must continually respond to changes in

societal objectives, cultural diversity, and a shared understanding of marriage as

361

both a legal and spiritual construct. This article will focus on the evolving role of

state supervision and federal oversight in relation to marriage and divorce. Part II

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

sex marriage as valid throughout the nation and its implication on related areas of

law, as well as implementation challenges since the legalization of same-sex mar-

riage. Part III considers the regulation of marriage, including restrictions on child

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

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

divorce statutes, the use of tort law and alternative dispute resolution for remedy,

the dissolution of same-sex marriages, and issues surrounding non-traditional

family structures.

II. SAME-SEX MARRIAGE

A. BACKGROUND

The first court case demanding equal treatment with regard to marriage for

same-sex couples occurred in the early 1970s; however, the petitioners were

unsuccessful.

1

Since that time, same-sex couples continually challenged the con-

cept that marriage 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 by ini-

tiating several efforts to restrict marriage to opposite-sex couples, with varying

degrees of success. In 2013, however, the Supreme Court struck down Section 3

of the Defense of Marriage Act (DOMA), which had restricted the federal defini-

tion 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

This ruling has had a

significant impact because DOMA’s definition of marriage controls over 1,000

federal laws in which marital or spousal status is addressed. As such, Section 3 of

DOMA effectively restricted same-sex couples’ access to federal benefits, even if

they were legally married according to state law.

4

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.

5

They trav-

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

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

2. 1 U.S.C. § 7.

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

4. Id. at 772.

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

362 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 23:361

mutual promise.

6

Three months later, Arthur passed away.

7

Ohio law did not rec-

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

Arthur’s death certificate.

8

Obergefell brought suit to be shown as the surviving

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

9

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.”

10

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.

11

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

(June 26, 2015, 3:01 PM), http://www.scotusblog.com/2015/06/opinion-analysis-marriage-now-open-

to-same-sex-couples/.

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.

12

The Court examined the Due Process Clause of the Fourteenth

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

erty, or property, without due process of law.”

13

The Court noted that, in addition

to the rights enumerated in the Bill of Rights, “liberty” also included those “per-

sonal choices central to individual dignity and autonomy.”

14

The Court further

reasoned that it is always the Court’s judicial duty to exercise reasonable judg-

ment to identify and protect the fundamental rights of individuals and to address

a new claim of liberty with new insight.

15

The Court acknowledged that it has long recognized that the right to marry is a

fundamental liberty.

16

First, the personal choice to get married is inherent in the

concept of individual autonomy.

17

Getting married to another person is the most

intimate decision one can make.

18

Thus, marriage deserves to be respected by the

Court. Second, marriages are important for the committing individuals in that it

promotes the two-person union.

19

Prisoners’ right to marriage further demon-

strates that the right to marriage is fundamental.

20

Third, the right to marry has a

bearing on the rights of childrearing, procreation, and education.

21

Finally,

6. Id.

7. Id.

8. Id.

9. Id.

10. Id. at 681.

11.

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

13. U.S. CONST. amend. XIV, § 1.

14. Obergefell, 576 U.S. at 663.

15. Id. at 664.

16. Id.; see also Loving v. Virginia, 388 U.S. 1, 12 (1967) (citing Skinner v. Oklahoma, 316 U.S.

535, 541 (1942) and Maynard v. Hill, 125 U.S. 190 (1888)).

17. Obergefell, 576 U.S. at 665.

18. Id. at 666.

19. Id.

20. Id. at 667 (citing Turner v. Safley, 482 U.S. 78, 95–96 (1987)).

21. Id.

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