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 Divorce: Layered with Issues

close up of happy male gay couple holding handsSame sex couples have only recently, and only in some states, been given the right to marry.  With the right to marry, unfortunately, often comes the right to divorce.   For those attorneys and parties who have tried to navigate same-sex divorces, many issues arise which include issues not always seen in heterosexual divorces.

The first issue that might arise in a same-sex divorce is: What is the date of marriage?  Since states have granted the right for same-sex couples to marry on different dates, some states might disagree on the determination of a couple’s actual date of marriage depending on where the couple was married.  This issue might also arise if a couple is residing in a state that recognizes common law marriage (note: Wisconsin does not recognize common law marriage).  The date of marriage (i.e. length of marriage) is important when addressing issues regarding support.

On this topic, many same-sex couples are together for years before they were able to get legally married.  These couples considered themselves “married” long before they were legally married, which included  commingling their assets.  Regardless, there is a question as to whether or not such couples should get “credit” for the time spend together in a marriage-like relationship before legally married.  Most courts will only divide assets starting from the time a couple actually got married.  This can create a lot of inequality and unanswered issues for these couples.

A related issue is also whether or not a couple even has a valid marriage and if a court can even grant a Judgment of Divorce.  Since some same-sex couples traveled outside of their home state or U.S. to be married, their marriage may not be valid.  In this case, a Judgment of Divorce might not be appropriate.

If children are involved, a same-sex divorce can becomes even more complicated depending on when the children were born.  Children born during a marriage are considered marital children.  In many same-sex marriages, you might have children born prior to a legal marriage who are considered by their parents to be ‘marital children,’ but not in the eyes of Wisconsin law.  For same-sex couples whose children were not born during a legal marriage, either one or both of the parents are not the biological parent of the child.  This presents several questions for the court.  For example, if the child is not biological, have both of the parents legally adopted the child?   If only one parent is biological, does that parent have all the rights?  These questions are perplexing to the court, to the parents and to the children.

Same-sex couples are also running into issues when they try to get divorced in states other than the state where they were legally married.  States that do not recognize same-sex marriages typically will not grant a same-sex divorce, as the state views the marriage as unlawful from the start.  Therefore, the same-sex couple, or at least one of the spouses, must return to the state where they got married.  Many states, like Wisconsin, require at least a six-month minimum residency requirement for anyone who wants to petition for divorce, so this creates more delay and financial burdens for these couples.

Clearly, same-sex divorce is not a well-defined area of law.  This means that the courts, court officials and attorneys are lacking clear answers on what courts are required to do, or should consider, when making divorce related decisions for these couples.  Therefore, many courts are requiring attorneys to do additional research and file briefs to point the court in the right direction.  Since there is additional work that is often required, not only are delays very common, but same-sex couples might pay more in attorney fees to be divorced.

More issues than the above may arise during a same-sex divorce proceeding, and it is important that you choose an attorney who is willing and able to navigate you through this relatively new and developing area of family law.   If you 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

On June 6, 2014, Federal Judge Barbara Crabb found that the Wisconsin Constitutional Amendment prohibiting same sex marriage is unconstitutional under the US Constitution.  The question then arose: Did Wisconsin join the sixteen other states in the US legalizing gay marriage?  The answer to that question is now unclear.

Immediately following Judge Crabb’s decision, many same sex couples in some Wisconsin counties flooded the courthouse, obtained marriage licenses and married.  The status of those marriages are now in question based on the subsequent court decisions that followed.

One week after Judge Crabb’s initial decision was made, however, while she affirmed her ruling, she stayed the decision pending appeals. This means that the judge essentially put her order regarding the unconstitutionality of the Wisconsin prohibition on same sex marriages “on hold” while the party who does not agree with the order appeals to the higher court.

The political and personal controversy has sparked interest in many Wisconsin residents, however, it is the legal effects of this decision that has piqued the interest of family lawyers around the state.

Statistics say that over 550 same-sex Wisconsin couples wed during the week that the same-sex marriage ban was lifted and not yet “put on hold” by the Judge who made the ruling. Now that the order is stayed, many are concerned about the legal limbo regarding the status of these couples’ marriages.  The courts have yet to decide whether or not the marriages that occurred during that one week are, in fact, valid.

Some of the major issues that these couples will face while this appeal is pending is how to file state and federal income taxes, how to deal with pensions, if same-sex couples can provide for each other on their health insurance policies, can they adopt children together and if they are able to file for divorce or an annulment.

Without having a decision on whether their marriages are valid, these couples may be uncertain of their rights and obligations under the law. In turn, family law attorneys may also be uncertain on the best way to advise these parties when legal issues arise in any of these 550+ same-sex marriages, especially, if any of these couples decide to separate.

While it is exciting to see law-in-action, it may be stressful for the couples and families involved.  Eventually, we will have a final decision to all of these questions.  In the meantime, we all must wait to follow the law as it develops.

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.