U.S. Supreme Court Recognizes the Legal Right to Marriage for Same Sex Couples

Two silver rings resting on a background in colors of a homosexual flag

On June 26, 2015, the United States Supreme Court ruled that the United States Constitution guarantees a right to same sex marriage. All states are now required to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Now, two consenting adults can be legally married in the state of Wisconsin, and can expect that Wisconsin, and all states, will recognize that marriage as legal.

It also follows that, any married couple should expect the same legal process of divorce in Wisconsin. However, how these laws apply to same sex marriages remains unsettled. For example, one glaring issue is determining the length of the marriage for purposes of maintenance, or alimony. Maintenance is linked to the length of marriage, so how will the courts determine when the marriage started? Will the court use the date of the couple’s actual marriage, or the date in which Wisconsin recognized the legality of their marriage?  It also remains unsettled as to whether children born to same sex married couples will be ‘presumed’ by the State of Wisconsin to be children of both parties.

While the legal system determines these legal nuances, the fact remains that we can move forward from categorizing or defining marriages or divorces. Any individual who is seeking legal counsel for family law issues, including divorce, should feel confident that his or her attorney is prepared to guide her client through the legal process, regardless of whatever unique circumstances are involved. If you are facing this difficult situation, call us at (414) 258-1644 to schedule a free initial consultation to discuss your case.

Same Sex Marriage in Wisconsin

Recently, the U.S. Supreme Court addressed the issue of same sex marriage in two high profile cases. The results of those cases has changed the laws regarding same sex marriage in many jurisdictions throughout the United States and how our federal government views those marriages.

In Wisconsin, our laws continue to prohibit same sex marriage. The impact, however, of the recent U.S. Supreme Court decisions has made issues involving rights of many married same sex couples in Wisconsin more complicated and confusing when it comes to their federal rights.

In one of the decisions, the U.S. Supreme Court struck down the provision of the Defense of Marriage Act (1996) (“DOMA”) that says that marriage must be between a man and a woman. As a result, the federal government cannot refuse benefits to same sex couples who are legally married and reside in a state that allows the same.

Unfortunately, each federal agency/program has their own rules to grant rights and benefits to married same sex couples who reside in states which do not allow such marriages. As a result, there is a lot of inconsistency as to how federal rights and benefits are awarded to same sex couples who are legally married in one state, but reside in a state that does not recognize such a marriage. The decision to award such federal rights and benefits is then based on whether the agency/program follows the “Place of Domicile” rule or “Place of Celebration” rule. It is important for such couples to know their rights.

Presently, there are 13 states that allow same sex couples the right to marry. It is common, however, for couples to move between states or marry in one state and live in another. As a result, there are many couples whose legal status and right to benefits come into legal question.

While Wisconsin does not allow same sex marriage, if you are married legally in a state that does allow such a marriage and you then move to Wisconsin, it is important to know your federal rights as a spouse. Further, spouses should consider registering with the Wisconsin State Domestic Partnership Registry which currently entitles those spouses to 43 rights within Wisconsin, including for example, the right to spousal privilege in legal proceedings, Family Medical Leave Act benefits, etc.

Married same sex couples in Wisconsin should consult with appropriate legal counsel to address estate planning issues, issues involving common children, and other property related issues.

Should such a marriage deteriorate to the point of divorce, it is also important to consult with a family law attorney knowledgeable in this field to discuss legal options to terminate a marriage even if the State of Wisconsin does not legally recognize that marriage.