MARRIAGE AND DIVORCE
EDITED BY OLIVIA LUONGO, HEMA GHARIA, MELL CHHOY, HATTIE PHELPS,
AND JESSICA FLYNN
I. INTRODUCTION.......................................... 768
II. SAME-SEX MARRIAGE .................................... 768
A. BACKGROUND ...................................... 768
B. THE OBERGEFELL HOLDING............................. 769
C. IMPLEMENTATION AND ENFORCEMENT CHALLENGES SINCE
OBERGEFELL ....................................... 771
III. STATE REGULATION OF MARRIAGE ......................... 773
A. JURISDICTION AND RECOGNITION ......................... 773
B. RIGHTS RESULTING FROM FORMATION ..................... 776
C. PLURAL MARRIAGE .................................. 783
D. COVENANT MARRIAGE ................................ 784
E. STATUS OF CIVIL UNIONS AND DOMESTIC PARTNERSHIPS ........ 786
F. CHILD MARRIAGE ................................... 786
IV. DIVORCE AND DISSOLUTION STRUCTURES .................... 787
A. DIVORCE STRUCTURES ................................ 787
1. Jurisdiction ......................................... 788
2. Fault-Based Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 789
3. No-Fault Divorce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 790
a. Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . 791
4. Dissolution of Covenant Marriage . . . . . . . . . . . . . . . . . . . . . 792
B. ALTERNATIVE REMEDIES............................... 792
1. Remedies Under Tort Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 793
2. Alternative Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . 794
C. DIVORCE ISSUES FOR SAME-SEX UNIONS ................... 795
D. NON-TRADITIONAL FAMILY STRUCTURES ................... 795
V. FORUM SHOPPING ...................................... 797
VI. CONCLUSION .......................................... 798
APPENDIX A: SELECTED MARRIAGE REGULATIONS BY JURISDICTION . . . . . . . . . 800
APPENDIX B: SELECTED DIVORCE REGULATIONS BY JURISDICTION .......... 821
767
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
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 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, initiat-
ing 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 had 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
Pub. L. No. 118-5).
3. See Windsor, 570 U.S. at 745.
4. Id. at 761, 772.
768 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 25:767
Although Obergefell v. Hodges made DOMA unenforceable, the law’s validity
could easily be revived. “[I]f 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 Respect for Marriage
Act (RFMA) was signed into law on December 13, 2022.
7
The Act promises legal
protections for marriage equality.
8
Bipartisan Group Leads Introduction of Respect for Marriage Act, HOUSE COMM. ON THE
JUDICIARY (July 19, 2022), https://perma.cc/5T9Q-5HXD.
The RFMA repealed and replaced DOMA pro-
visions that define marriage as only between a man and a woman. Moreover, the
Act prohibits states from denying full faith and credit to an out-of-state marriage
based on sex, race, ethnicity or national origin, creates a private right of action for
any individual harmed by a violation of the Act, and grants 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; 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.
Notably, the RFMA does not “cod-
ify” Obergefell since it does not require every state to license same-sex mar-
riages.
10
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 amyotrophic lateral sclerosis (“ALS”), the two resolved to marry
before Arthur died.
12
They travelled from Ohio to Maryland, where same-sex
marriage was legal, “[t]o 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
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 opinion, the Court held that “same-sex couples
may exercise the fundamental right to marry in all States . . . [and] there is no
5.
6.
7. Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305 (2022).
8.
9.
10. Stern, supra note 9.
11. Id.
13. Id.
14. Id.
15. Id.
16. See id.
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