The Supreme Court’s 2015 decision in Obergefell v. Hodges marked a sea change in family law. While the immediate impact of the decision is clear – same-sex couples now have the right to marry in every state – the implications of the decision for family law and for practicing family lawyers are considerably broader. Recognition of marriage equality has created new issues for courts deciding divorce and parenting cases, and for lawyers advising clients about issues related to family formation and family break-up. This post will highlight the family law implications of Obergefell and explore some of the issues that are likely to arise in future cases involving the rights and obligations of same-sex couples.
Same-sex divorce, American style
According to the Williams Institute, close to 400,000 same-sex couples were already married at the time Obergefell was decided. A recent Gallup poll estimates that more than 120,000 additional same-sex couples have married since that time. But not all marriages endure. About 40% of heterosexual marriages now end in divorce, and it is reasonable to anticipate that the divorce rate for same-sex couples will be roughly comparable. Indeed, access to the financial and parenting remedies associated with divorce is one of the important benefits of marriage. But same sex divorces are likely to raise some challenging legal issues.
Parenthood and the impact of the marital presumption
When an opposite sex couple divorces, legal parentage generally is not disputed. In part, this is due to the operation of the “marital presumption” — the legal rule that identifies the husband of a married woman as the legal father of any children born (or conceived) during the marriage. At one time, the presumption was nearly irrebutable. More recently, courts in a number of states have allowed divorcing parties to rebut the presumption based on genetic evidence of non-paternity.
Courts and legislatures have already begun to grapple with the application of the marital presumption to same-sex couples. Although the language of the presumption is usually gendered — specifying both a husband and a married woman — some courts have interpreted the statutory reference to husband to apply as well to a female spouse. Other courts have declined to interpret their statutes broadly, but have invoked equal protection principles to extend the marital presumption to same-sex partners. See, e.g., Gartner v Iowa Department of Public Health, 830 N.W.2d 335 (Iowa 2013). Still others have refused to apply the presumption to same-sex relationships, citing its biological underpinnings or opining that such a step is a matter for the legislature, not the judiciary.
Even if courts apply the marital presumption to same-sex couples, questions remain about its impact. In most states, the presumption is now rebuttable, and genetic evidence of non-paternity is often (albeit not always) sufficient grounds to rebut the presumption. But should genetic evidence be relevant to parentage in a same-sex marriage, where both spouses know from the outset that one parent will not be genetically related to the child. And how, if at all, should the presumption apply to gay male marriages, in which neither spouse is a “married woman” and where the woman who gives birth is generally not an intended parent? These questions, of course, raise the broader issue of whether parentage should be understood as a biological fact, or (primarily) as a legal and social construct. And, if parentage is primarily a legal construct, what role (if any) should marriage play?
Moreover, as its name indicates, the marital presumption applies only to children born (or conceived) during a marriage. But many same-sex couples today are co-parenting children who were born to one spouse before their marriage, perhaps during a prior heterosexual union. The marital presumption is of no use here, just as it provides no basis for step-parents to assert legal parentage in the absence of an adoption. Other doctrines such as de facto parenthood, discussed in Professor Murphy’s last post, may be available to establish parental rights, but establishing parenthood under those doctrines in fact-specific and uncertain, and the doctrine has been criticized as insufficiently protective of the autonomy of biological parents.
Moreover, while many states now recognize some form of de facto parenthood, others do not, and, in the absence of a judicial decree, states are not required to respect each other’s parentage rules. Thus, a same-sex partner who is recognized as a legal parent in one state may not be recognized in another. For this reason, many family lawyers continue to advise same-sex spouses to secure parental rights through adoption, even where a couple is married at the time their child is born. But adoption can be both expensive and intrusive, and many same-sex couples understandably assume that their marriage renders adoption unnecessary, only to find upon dissolution that the law is far less settled than they imagined. Judicial declarations of parentage, obtained at the time a child is born, could provide an alternative means of interstate recognition, but existing state procedures are not designed for same-sex couples, whether married or not.
Divorce-related financial remedies
The dissolution of same-sex marriages presents other challenges as well. Current standards for both property distribution and post-divorce spousal support depend significantly on the length of the marriage in question; the longer the financial interdependence associated with marriage, the more robust the post-divorce sharing rules. But many of today’s same-sex marriages were preceded by lengthy periods of non-marital cohabitation, particularly in states that refused to allow same-sex marriage prior to Obergefell. If such a couple divorces after a relatively short marriage, can a court base a property or a support award on the lengthy period of pre-marital cohabitation? Many courts have refused to do so in cases involving opposite-sex couples who cohabited prior to marriage, noting that the applicable statutory language refers specifically to the length of the marriage, not to the length of the relationship. Should these decisions apply to same-sex couples? Other courts have relied on their on their equitable powers to consider non-marital cohabitation as a factor in fixing the financial consequences of divorce. Some commentators have suggested using common law marriage as a solution to this problem. But common law marriage has traditionally required that individuals have the legal capacity to marry each other at the time the relevant conduct took place and that the parties held themselves out as married in one of the handful of states that allow couples to contract a common law marriage. Both of these requirements are likely to post problems for most same-sex couples.
And how should Obergefell affect the treatment of cohabitation relationships that break up without a marriage? Prior to Obergefell, a number of states had begun to apply principles of equity or implied contract to redistribute assets accumulated in one partner’s name at the end of a long-term cohabitation relationship. Many of these cases involved same-sex couples, and the couple’s inability to marry may well have influenced the court’s decision. The American Law Institute’s Principles of Family Dissolution took these developments a step further by extending status-based property and support remedies to unmarried partners who “for a significant period of time share a primary residence and a life together as a couple.” How should Obergefell’s recognition of marriage equality affect the viability of these doctrines? Does the availability of same-sex marriage weaken claims based on non-marital cohabitation on the theory that a couple’s decision not to marry is an indication that they (or at least one of them) prefer not to be bound by marital sharing principles? Is this a preference that the law should respect, even if, in hindsight, it turns out to be a bad deal for one of the parties? Or should courts continue to apply functional, as well as formal criteria, to determine the appropriateness of post-relationship financial sharing?
Wither Civil Unions and Domestic Partnerships
More generally, how should the availability of same-sex marriage affect other legal statuses, such as domestic partnerships and civil unions? Should states that previously recognized such unions automatically convert them to marriages unless a couple explicitly “opts out?” Or should states require that domestic partners affirmatively “opt in” to marriage? What should be the legal default? Will private companies that previously provided benefits to same-sex domestic partners now restrict such benefits to married couples? And, if so, has the “right” to marry celebrated in Obergefell become an obligation to do so – a possibility that Professor Kathrine Franke cautioned against in her 2015 book, Wedlocked: The Perils of Marriage Equality.
More broadly, should states retain these alternative legal statuses as a form of “marriage lite” or have they outlived their utility now that both same-sex and opposite-sex couples have access to marriage? And if states choose to retain these alternatives, do constitutional equality principles require that they be made available to opposite-sex as well as same-sex couples? To non-romantic partners such as siblings or other relatives? Now that marriage is available to same-sex as well as opposite sex, couples, how much should it matter?
Beyond Marriage and Divorce
Marriage equality is also likely to affect legal developments in contexts beyond divorce and parenting disputes. In her recent article, Inheritance Law and the Marital Presumption After Obergefell, my colleague, Paula Monopoli, examines the impact of Obergefell on inheritance law; she argues that important policy goals support extending a conclusive marital presumption to all nonbirth/nongenetic spouses for purposes of inheritance law, and suggests that the presumption be unmoored from its biological roots and re-conceptualized as resting on the presumed consent of the nonbirth/nongenetic spouse to be the parent of any child born during a marriage. In a broader frame, Douglas NeJaime, argues in his recent Harvard Law Review article, Marriage Equality and the New Parenthood, that marriage equality was both enabled by – and, in turn, enables — significant shifts in the law’s understanding of parenthood and in its ongoing construction of families. Without a doubt, this is a construction project that should capture the imagination and engage the efforts of both legal scholars and practicing family lawyers for many years to come.