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Wisconsin’s Approach to Same-Sex Divorce and Family Law Issues

by | Apr 15, 2024

The history of same-sex marriage in the United States is a complex and evolving story––one which has witnessed considerable growth since the landmark Supreme Court case Obergefell v. Hodges in June 2015, which resulted in nationwide legalization. And now, with same-sex marriage a federally recognized right, the subject of same-sex divorce also becomes part of the conversation. 

In the state of Wisconsin, the approach to same-sex divorce and family law issues is rooted in equality and fairness. In 2009, before the federal ban was lifted, Wisconsin became one of the first states to recognize same-sex marriages and subsequently passed legislation allowing for same-sex divorces to be handled in the same manner as those of heterosexual couples. 

At VHD Law, our firm provides knowledgeable and experienced legal counsel and representation during one of life’s most difficult situations––including the handling of complex issues that may arise during same-sex divorces, such as child custody arrangements, division of assets, and spousal support. 

If you and your same-sex partner are considering divorce, contact us for a free case review.

History of Same-Sex Marriage Recognition in Wisconsin

Wisconsin has a complex history when it comes to recognizing same-sex marriage. There have been several cases (McConkey v. Van Hollen; Halopka-Ivery v. Walker) that stand out as examples of challenges to the state’s passing of a constitutional amendment banning gay marriage and civil unions in 2006. However, in 2014, a federal judge ruled that the ban was unconstitutional, allowing same-sex couples to marry in the state. The ruling was soon put on hold as appeals were filed by the state. Finally, in 2015, the Supreme Court legalized same-sex marriage nationwide, making it legal in Wisconsin as well. Despite this progress, LGBTQ+ rights are still a divisive issue in the state, with ongoing debates about discrimination protections and other related issues. 

The Impact: Same-Sex Marriage and Divorce in Wisconsin

The legal recognition of same-sex marriage in Wisconsin has had a significant impact on divorce and family law practices in the state. Before the legalization of same-sex marriage, same-sex couples faced numerous challenges when it came to the dissolution of their relationships, such as lack of spousal support, shared property division, and child custody rights. However, with the legalization of same-sex marriage, these couples now have access to the same legal rights and protections as heterosexual couples in the event of a divorce. 

Statutory Provisions for Same-Sex Divorce

In Wisconsin, same-sex couples can legally dissolve their marriages using the same statutory provisions that apply to heterosexual couples. The state does not discriminate based on gender or sexual orientation in terms of divorce proceedings, ensuring equal rights and protections for all individuals. Same-sex couples seeking divorce must still adhere to the state’s laws regarding property division, child custody, and support obligations. Wisconsin law also recognizes the validity of prenuptial agreements between same-sex spouses, providing clarity and guidance in the event of a dissolution of marriage. 

In all, the state recognizes that individuals, regardless of sexual orientation, have the right to end their marriages through a legal process that adheres to established laws and procedures. Same-sex couples seeking a divorce in Wisconsin are afforded the same rights and protections as opposite-sex couples.

FAMILY LAW: Child Custody and Parental Rights

Legal Parentage in Same-Sex Couples

In Wisconsin, legal parentage in same-sex couples is determined based on the marital status of the individuals at the time of conception or birth. For married same-sex couples, both spouses are automatically considered legal parents of any children born during the marriage, regardless of biological relation. This is due to Wisconsin law recognizing both members of a same-sex couple as equal parents with rights and responsibilities towards their children. However, for unmarried same-sex couples, establishing legal parentage can be more complex and may require a court order or legal documentation to confirm parental rights.

Custody and Placement Considerations For Same-Sex Couples

These types of considerations can present unique challenges to unmarried same-sex couples due to the current legal landscape. While recent legislative changes have made it possible for both parents in a same-sex relationship to establish legal parentage through various means such as adoption or assisted reproduction agreements, there are still disparities when it comes to custody and placement rights. Same-sex couples may face discrimination or bias in family court proceedings, particularly in cases where one partner is not recognized as a legal parent.

Adoption and Assisted Reproduction For Same-Sex Couples

The state’s laws allow same-sex couples to adopt children jointly, ensuring that both parents have legal rights and responsibilities. Wisconsin has also passed legislation prohibiting discrimination based on sexual orientation in the provision of assisted reproductive services, allowing same-sex couples access to fertility treatments and surrogacy arrangements.

SAME-SEX DIVORCE: Division of Property and Assets

Application and Treatment of Equitable Distribution in Same-Sex Divorces

When dealing with same-sex divorce in Wisconsin, equitable distribution is the method used to divide marital property. This process focuses on fairness and ensuring that each spouse receives an equitable share of assets acquired during the marriage. The courts consider a number of factors such as the length of the marriage, each spouse’s financial contribution to the marriage, and their earning potential when determining how to divide assets fairly. Unlike community property states where assets are divided equally, Wisconsin follows equitable distribution principles which may result in a more flexible division of property based on individual circumstances.

The treatment of assets acquired before the legal recognition of same-sex marriage can be complex and requires careful consideration. Prior to the legalization of same-sex marriage, many couples entered into domestic partnerships or other forms of legal arrangements to protect their rights and assets. In cases where property was acquired jointly but not legally recognized as such, it has since become important to establish ownership through documentation such as deeds, titles, or financial records.

Spousal Support and Maintenance

Eligibility and Determination of Spousal Support in Same-Sex Divorces

The eligibility and determination of spousal support in same-sex divorces are handled similarly to heterosexual divorces in Wisconsin. When determining spousal support, also known as maintenance, the court takes into consideration various factors such as the length of the marriage, each spouse’s income and earning capacity, their education and job skills, contributions made to the marriage, and any financial needs or obligations. 

Since gender is not a determining factor in awarding spousal support in Wisconsin, the court aims to ensure that both parties can maintain a similar standard of living post-divorce, further emphasizing equality within same-sex marriage dissolution. It is essential for same-sex couple going through a divorce to seek legal counsel from experienced attorneys who understand these nuances and can help navigate the complexities of spousal support determinations effectively.

Prenuptial and Postnuptial Agreements

The Role of Marital Agreements in Same-Sex Marriages

In Wisconsin, marital agreements play a crucial role in same-sex marriages by providing a legal framework for defining rights and responsibilities within the relationship. These agreements, often referred to as prenuptial or postnuptial agreements, allow couples to outline their intentions regarding property division, spousal support, and other important considerations in the event of a dissolution of marriage. These agreements can help alleviate any potential uncertainties or disputes that may arise during the marriage or separation process, providing a sense of security and stability for both parties involved.

In order for a prenuptial agreement to be considered enforceable, it must be in writing and signed by both parties voluntarily and with full disclosure of assets. The agreement cannot be unconscionable or unfairly disadvantage one party. 

Dispute Resolution and Mediation

Mediation as a Tool for Resolving Same-Sex Family Law Disputes

It is often best to avoid litigation––especially for families with children––and pursue alternative methods of resolution during same-sex family law disputes.  

During this type of process, a neutral third party helps the involved parties reach a mutually acceptable agreement through open communication and negotiation. Mediation allows family members to discuss their concerns and interests in a controlled environment, fostering understanding and empathy between conflicting parties. In Wisconsin, mediation also promotes cooperation and collaboration, which can be especially beneficial when addressing sensitive issues such as child custody or division of assets. The process is confidential, ensuring privacy for all involved parties, and results in agreements that are tailored to the specific needs and circumstances of the family.

Make Challenging Life Decisions Easier with VHD Law

When considering any of the above-mentioned areas of same-sex divorce or family law, it is crucial for individuals or couples to consult with experienced legal counsel to ensure that their rights and interests are protected. Family law practitioners in Wisconsin are working diligently to ensure that same-sex couples have access to fair and just outcomes in divorce proceedings, emphasizing the importance of upholding equal protection under the law for all individuals regardless of sexual orientation.

The family law attorneys at Vanden Heuvel & Dineen are available to answer any questions or concerns. Contact us today to learn more and schedule your free case consultation.

Written by Vanden Heuvel & Dineen, S.C.


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