Bargaining in the Shadow of the “Law?” – The Case of Same-Sex Divorce

Abstract

Literature on same-sex marriage has focused on such questions as: How do state laws treat same-sex couples? What rights come with marriage equality? What rights should same-sex couples have? This student paper focuses on a different issue: What effect do these state laws have on the experience of same-sex couples—in this case, when they negotiate a divorce? This paper applies Robert Mnookin and Lewis Kornhauser’s Bargaining in the Shadow of the Law model to the case of same-sex couples. As Mnookin and Kornhauser argue, family law rules do not impose outcomes on divorcing couples from above, but instead create a framework of legal entitlements within which a couple will bargain their own divorce terms. When bargaining, these individuals are influenced by five factors, including “the bargaining endowments created by legal rules” and “the degree of uncertainty concerning the legal outcome if the parties go to court.” This paper assesses how federal and state laws will impact these factors for same-sex couples in states where same-sex marriage and/or divorce is legal and in states where they are not. After the invalidation of the Defense of Marriage Act in 2013, same-sex couples in states where same-sex divorce is legal will bargain in the same manner as opposite-sex couples. However, in states that do not recognize same-sex unions, such bargaining becomes impossible. When working through property disputes, the divorcing couple cannot turn to relevant laws as endowments, and while uncertainty is high, neither party can turn to the courts. In custody disputes, these two factors are again eviscerated, but for a different reason: there are two endowments on which each divorcing partner can rely (the laws in the state of the marriage and the state of residence) and two courts to which they could turn to address these uncertainties. Unless the remaining provisions of DOMA are repealed, this inequality in bargaining is likely to persist.