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

By Jeremy Feigenbaum*

In November 2003, in a 4-3 decision, the Massachusetts Supreme Judicial Court held that Hillary and Julie Goodridge, a same-sex couple, were entitled to marry.¹ In 2004, they were then among the first same-sex couples to marry in the United States.² But in 2006, the two announced their separation, which ultimately ended in divorce.³ Commentators debated the meaning of their divorce: One LGBT advocate stated that this was proof “[o]ur marriages are not unlike everyone else’s marriages, which is that they are both precious and fragile,” while same-sex marriage opponents, alluding to their claim that same-sex relationships are less likely to last than heterosexual ones, declared that this “demonstrates again why we are so concerned for children in inherently unstable relationships.”⁴

For Hillary and Julie Goodridge, however, what surely mattered more than the statement their divorce made was their ability to divorce at all — and what it would mean for their daughter. An LGBT advocate noted, “[i]t is also good . . . they have the protections of wedlock as now they and their daughter will have all of the security and clear rules that married couples benefit from when they do divorce.”⁵

That sense of security is a recent phenomenon. In 1994, the New York Times highlighted a same-sex couple in Missouri and described the couple’s attempts to divorce as “loaded with ambiguities and unknowns, conducted in a court system that lawyers and clients say is hostile at worst and indifferent at best.”⁶ Yet while detailing these couples’ rights and struggles to divorce, articles like this one failed to offer meaningful insights into the substantive outcomes these couples were achieving in their divorces. The press did not write about how the Missouri couple decided who should keep the marital home or how Hillary and Julie handled custody.

In 1979, Professors Robert H. Mnookin and Lewis Kornhauser authored a seminal work on the relationship between divorce law and the actual divorce experience of American couples.⁷ Their central insight was that family and divorce laws do not impose outcomes “from above” on divorcing couples. Rather, the law creates the “framework” within which a divorcing couple will determine their post-divorce rights and responsibilities. While family law rules do not determine which spouse will keep the home or which deserves custody of the children, laws influence the parties’ expectations regarding what they will win if they fall back on their alternative of going to court instead of relying on negotiation. Those background rules — legal “entitlements” — affect how such parties should bargain with one another. According to Mnookin and Kornhauser’s “Bargaining in the Shadow of the Law” model, the law does not determine the outcome, but it still impacts the result reached.

This useful insight has not been applied to the problem of same-sex divorce, which poses especially interesting questions under the “Bargaining in the Shadow of the Law” model. The law governing same-sex marriage and divorce is unclear, ever changing, and widely divergent from state to state.⁸ The conventional story about same-sex couples and their families, such as the story told about heterosexual divorces before 1979, focuses solely on the relevant laws. There is no discussion of the role that these laws play as a “framework.” The literature focuses on such questions as: How do state laws treat same-sex couples? What rights should same-sex couples have? This Note focuses on a different issue: What effects do these state laws have on the actual experiences of same-sex couples when they negotiate their divorces?

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*Jeremy Feigenbaum is a 2014 graduate of Harvard Law School. 

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[1]. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).

[2]. Lynne Marie Kohm, What’s the Harm to Women and Children? A Prospective Analysis, in What’s the Harm: Does Legalizing Same-Sex Marriage Really Harm Individuals, Families or Society? 79, 79 (Lynn D. Wardle ed., 2008).

 [3]. Id.

 [4]. Gay “Marriage” First Couple Splits Up in Massachusetts, Wash. Times, July 21, 2006, http://www.washingtontimes.com/news/2006/jul/21/20060721-111920-1539r.

[5]. Id. (internal quotation marks omitted).

[6]. Kirk Johnson, Gay Divorce: Few Markers in This Realm, N.Y. Times, Aug. 12, 1994, http://www.nytimes.com/1994/08/12/us/gay-divorce-few-markers-in-this-realm.html.

[7]. Robert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).

[8]. As of February 12, 2015, thirty-seven states and Washington, D.C., allow same-sex couples to marry. States, Freedom To Marry, http://www.freedomtomarry.org/states/ (last visited Feb. 12, 2015).