by Daniel O’Donnell
Over the last decade, a national reckoning has unfolded regarding the historically unequal treatment of women in the workplace and beyond, as well as the broader implications and meaning of gender roles. What began primarily as a conversation around sexual misconduct in Hollywood – the #metoo movement – ultimately evolved into an examination of how gender and sexual orientation influence outcomes for every American. Nearly eight years later, the conversation continues, with mixed interpretations of the movement’s tangible impact on law and policy.
Gender roles have long been a contentious issue within family law, particularly as the division of marital assets in divorce has historically disadvantaged women, non-breadwinners, and those who take on traditional domestic roles within a marriage. For most of the 20th century, title-holder property divisions were the dominant principle in divorce settlements, which essentially codified gender biases into law. In the 1980s and 1990s, equitable division statutes attempted to rebalance the distribution of assets in a divorce by rebalancing the value attached to each spouse’s role and labor within the family. The jury is still out on the efficacy of those reforms.
Of course, the questioning of traditional gender roles has been but one of several forces in recent years to reshape our understanding of marriage and family. The landmark Obergefell v. Hodges decision in 2015 legalized same-sex marriage nationally, and same-sex marriages have continued trending upwards in the years since. In their paper “When Equitable Becomes Equal: Experimental Evidence on Division of Marital Assets with Same-Sex Couples,” forthcoming in Florida Law Review, John Roberts JD/PhD’24 and Jennifer Bennett Shinall, the Sara J. Finley Chair in Women, Law & Policy at Vanderbilt Law, explore the intersection of these forces by studying the division of marital assets in same-sex divorces as compared to opposite-sex divorces.
Using an experimental vignette study, the authors found that “subjects divide marital assets between spouses equivalently, regardless of whether the divorcing couple is same-sex or opposite-sex. Subjects’ own sexual orientation, however, influences how they divide marital assets between divorcing spouses.” The authors address changing attitudes beyond same-sex marriage and divorce, pointing to new evidence that suggests our national reckoning on gender and sexual orientation “may at last mitigate longstanding, unequal outcomes at the time of divorce.”
A lack of reliable, observational data has historically made the study of divorce law challenging. Many divorcing couples settle out of court, while others’ filings do not typically offer much information to researchers. Given the relative novelty of same-sex divorce and corresponding lack of data, along with the relative ubiquity of Americans’ proximity to divorce (either personally or through close family and friends), Roberts and Shinall found an experimental study to be particularly useful for this study. The experimental design involved vignette studies conducted in 2021 and 2022 with over 3,000 participants recruited from Amazon’s Mechanical Turk (mTurk). Participants were presented with scenarios involving divorcing couples, varying in terms of sexual orientation, gender, and educational background. They were tasked with dividing marital assets fairly, considering factors like the contribution of each spouse and future earning potential. The scenarios included both high and moderate asset cases, with assets valued at $20 million and $3 million, respectively.
The study found no bias among subjects against non-breadwinning spouses. In fact, straight, gay, and lesbian subjects awarded a roughly 50/50 distribution of assets to each divorcing partner (regardless of gender or other factors), while bisexual subjects favored the non-breadwinning partner with approximately 60% of marital assets. In another break from past studies, subjects did not appear biased by non-breadwinners’ education or gender, awarding nearly equal amounts of assets to male and female non-breadwinners of all educational backgrounds alike. Finally, in what the authors call a “somewhat surprising” result, subjects’ apparent lack of bias in asset division held true for both male and female same-sex couples.
Putting aside the divorcing couples’ characteristics and turning to the subjects’ own motivations across fourteen key factors, the authors found that: 1) bisexual subjects ranked every motivating factor highly – a stark difference from every other group, and 2) the value of staying home to raise children was a key motivating factor for all subjects, regardless of sexual orientation. This finding was another surprise, as the authors note that it “stands in contrast to prior experiments, in which subjects were strongly motivated by the entitlement of breadwinners to their earnings.”
Roberts and Shinall set out to fill an important gap in family law literature with this study, building upon previous experiments to examine attitudes and biases in asset allocation within same-sex divorcing couples. They found no difference between how subjects divided the marital assets of same-sex couples versus opposite-sex couples, calling the results “remarkable.” Interestingly, to the degree that asset distribution varied at all across couples, that variance was in each case a factor of the subjects’ own sexuality and gender, rather than the divorcing couples’.
Lastly, though the focus of the study was squarely on divorcing same-sex couples, the experiment revealed marked shifts in societal attitudes towards gender, sexual orientation, and the relative value that each partner brings to a marriage (breadwinner or not). This is the first post-#metoo, post-COVID-19 study of its kind and could very well reflect a watershed against long-held gender biases and towards equality. The study strikes a hopeful tone; the authors note “a near-future mitigation of longstanding disparities in post-divorce outcomes may be on the horizon.”
