Just when society began loosening its hold on stereotypical roles of men and women, the U.S. Supreme Court ruled in 2015 that same-sex couples have a legal right to marry. Family courts had just gotten around to accepting that men are as deserving of alimony as women in divorce and that they have the same rights to custody. Some experts, like Kathleen Ritter, Ph.D., professor of psychology at California State University, Bakersfield, feel that the 2015 Supreme Court ruling has the potential to muddy the waters again.
The First Hurdle -- Marriage Licenses
When the New York legislature legalized same-sex marriages in that state in 2011, would-be spouses immediately found themselves confronted with a challenge -- which of them was the man or husband, and which was the woman or wife? Application forms for marriage licenses identified potential spouses only by these labels. Mayor Michael Bloomberg promptly remedied the situation by directing that marriage applications include an option for couples to identify themselves as "Spouse A" or "Spouse B" instead.
Gender Roles in Custody Matters
Gender issues in divorce can be more complicated, particularly when a same-sex couple has children. All states decide custody based on the best interests of the children, and a common factor is which parent has been the child's primary caretaker – courts don't like to disrupt and rearrange a child's life any more than is necessary. Historically, the primary parent has been Mom, but courts have begun to acknowledge in recent years that sometimes Dad stays home with the kids or is otherwise the more hands-on parent. Issues of gender would seem to have been overridden in traditional divorce cases, but courts haven't always ruled this way in same-sex divorces.
Court Decisions on Same-Sex Parents
AARP reports that one same-sex spouse found herself left out in the cold because her partner had been the parent to legally adopt their child – they couldn't jointly adopt due to the laws in their state. She found she had no right to custody when they divorced, although the couple did ultimately work out an agreement with the help of mediators. Other courts have awarded custody to the biological parent in same-sex divorces based on this factor alone, throwing the best interests of the child – and gender roles – right out the window.
Property Is Genderless
Gender roles seem to have less of an impact on the financial aspects of divorce. In community property states, everything acquired during a marriage is scissored down the middle in divorce. It's a black-and-white equation with no room for gender biases. Equitable distribution states divide property in a way that seems fair after the court considers multiple factors. This approach might seem to open the door to complications in same-sex marriages because the decision is left to some extent to the personal opinions and perceptions of judges. But most equitable distribution states recognize that contributions made to the household and to the education or career of the other spouse have monetary value. The laws are geared toward protecting the under-earning spouse, regardless of gender.