Since the Supreme Court ruling that affirmed marriage equality, courts have faced the challenge of trying to apply laws created for different-sex couples to same-sex marriage, divorce, and family law cases.
The Ohio State Law Journal describes the myth of egalitarianism in same-sex marriages and how it can lead to an attitude of divorce exceptionalism that can hurt same-sex couples when they divorce.
Myth of egalitarianism
The myth of egalitarianism posits that, if there is no gender disparity in a same-sex relationship, there are also no power struggles as there may be in a different-sex relationship.
However, the reality is that power struggles do exist in same-sex relationships, even if those struggles do not relate to gender. For example, one spouse may earn more money than the other, and the lower-earning spouse may assume, willingly or otherwise, more traditionally “feminine” responsibilities, such as cooking and cleaning. There may also be a disparity of power in the relationship based on a perception that one partner is more “masculine” and the other more “feminine,” even though both are of the same sex.
Divorce exceptionalism
The myth of egalitarianism can lead to an attitude of divorce exceptionalism, i.e., same-sex marriage is distinct from different-sex marriage, so the laws governing the latter do not apply. Often, it is the higher-earning spouse who makes this argument, but the lower-earning spouse may internalize it. The end result is that, when negotiating a divorce agreement outside of court, the lower-earning spouse may end up with a less favorable settlement than he or she might have achieved when litigating the divorce.
The understandable fear that the court may not deal fairly with a same-sex couple could contribute to the lower-earning spouse agreeing to an unfavorable divorce settlement out of court.