The Changing Landscape of Marriage (and Divorce) for Same-Sex Couples

The bipartisan Respect for Marriage Act (RMA) made headlines across the country in December when it was passed by Congress and signed into law by President Biden. For all married couples, a quick review of what the law does – and does not do – can be beneficial when considering your rights as a spouse and your rights should you pursue divorce.

First, some background on the RMA

Congress was spurred into action in 2022 when U.S. Supreme Court Justice Clarence Thomas, writing in his concurrence with the Dobbs decision overturning Roe v. Wade, noted that he would be open to revisiting prior decisions affecting marriage, such as Obergefell v. Hodges. Congress moved swiftly to introduce the RMA in an effort to codify the right to marriage for same-sex couples as well as interracial couples.

What does the Respect for Marriage Act do, then?

Primarily, the RMA repeals 1996’s Defense of Marriage Act (DoMA), which defined marriage, for federal purposes, as exclusively between one man and one woman. It also requires the individual states, traditionally the arbiters of family law, to recognize legally preformed marriages from other states. The RMA provides protection for same-sex and interracial couples, bolstering Obergefell as well as Loving v. Virginia. An amendment added by the Senate protects decisions based on religious liberty and freedom of conscious for those, for example, who provide traditional wedding services for couples.

What RMA does not do, is force the states to have certain kinds of, or universal, marriage laws. In essence, it underscores the states’ traditional role as the purveyor of family law matters.

How then does RMA protect or affect same-sex couples?

By repealing the DoMA, RMA returns marriage decisions to the states. It also codifies protection for existing same-sex marriages and forces the individual states to recognize legally performed marriages of other states. This adds an extra layer of protection to the landmark Obergefell decision, as well as previous other rulings on state marriage laws such as Loving. It is widely seen as a hedge against a future Supreme Court decision which could dilute or extinguish marriage equality. This need became all the more pressing after Justice Clarence Thomas issued a concurring opinion in the Dobbs v. Jackson Women’s Health Organization decision arguing that the Court should reconsider the Obergefell decision.

Same-sex marriage has been protected for nearly eight years. How is the environment for same-sex divorce evolving?

Inevitably, divorce issues are following the right of same-sex couples to marry. There are some nuances to same-sex unions that require an extra layer of consideration when dissolving the union. For instance, prior to Obergefell, many gay and lesbian couples lived together and shared the things most married couples do – assets, debts, child custody, etc., but without protection of the law. We’ve seen many of those long-term couples get married post-Obergefell and now we’re seeing them divorcing.

One question the courts are facing now is how to divide assets that were accumulated and shared prior to marriage. In some cases, this can mean an entire life together. As in other marriages, there is often a primary bread winner. Normally, the primary breadwinner kept the assets they had accumulated during the relationship.

Now, post-Obergefell, the courts are taking a more equitable approach to the division of assets when ending a marriage. Non-tangible factors such as each spouse’s role in supporting the other are being considered. Alimony lump sum payments are an option, as is a division of the assets accumulated since the relationship was legally established as a marriage.

In essence, what we’re seeing the further we move from Obergefell is the normalization of same-sex divorce. The courts are recognizing assets brought into the marriage by each spouse as well as the contributions, monetary or not, that each person makes to the overall relationship.

The Respect for Marriage Act contributes to this normalization by leveling the marriage playing field across the country. It provides equality for same-sex as well as mixed-gender unions and forces the states to respect each other’s family law statutes. It also provides protections for those who, based on individual beliefs, chose not to recognize same-sex unions.

Michael Hodes is a partner at Boyd Collar Nolen Tuggle & Roddenbery. His practice focuses exclusively on family law matters with an emphasis on the financial aspects of divorce, including drafting prenuptial, post nuptial and settlement agreements.