With the legalization of same-sex marriage has come the need for same-sex divorce. Although the process by which an LGBTQ couple divorces is substantially similar to their heterosexual counterparts, there are a few unique legal issues that specifically impact the LGBTQ community.

Determining the Date of the Marriage

As we begin 2017, Wisconsin has not yet come to a consensus on how to determine the date of marriage for a same-sex couple. If the couple married in Wisconsin after October 6, 2014, the answer is quite simple: it is the date of the marriage. However, if the date of marriage falls within the following three scenarios, determining the date of marriage may be a bit more complex:

1. During the brief window of time that same-sex marriages were legal in June of 2014;
2. If the couple was married in a different state or country that recognized same-sex marriage prior to June 26, 2015; or
3. If the couple was “married” prior to October 2014 but did not sign a marriage license until after October of 2014.

Complexity arises in these three situations because there is arguably a legal “gap” in the marriage; that is, there is a period of time between the marriage ceremony and the legalization of same-sex marriage in Wisconsin when the couple may not have been considered legally married. This is likely to change as the first same-sex divorce cases start to trickle in to Wisconsin courts because there will be a precedent set. For now, there is no current precedent.

Ascertaining the date of marriage is important in determining property division upon divorce; generally, (with numerous exceptions), the longer the marriage, the more likely property will be divided in substantially equal parts. Property division is based on a list of factors, including but not limited to the length of the marriage, the property brought to the marriage by each person, and the contribution by one person to the education or increased earning power of the other. It is currently unclear whether Wisconsin courts are considering these factors for any period of time prior to the marriage becoming a legal union or prior to the legalization of same-sex marriage in Wisconsin. As with determining the date of marriage, precedent will be established as more cases are filed in court.

Child Support and Custody/ Placement

Determining matters involving the children of divorcing or separating LGBTQ couples in Wisconsin can be far more complex than with heterosexual couples. Same-sex marriage brought many, but not all, privileges to same-sex couples which were previously unavailable to them. Specifically, at this time, the marital presumption is not available to same-sex parents in Wisconsin.

For heterosexual couples, if a child is born during the course of a marriage and each spouse is aware that the child is not biologically related to the male, he is still presumed to be the father of the child. This is not the case with same-sex married parents. A more specific and lengthier process is required to create a “legal link” between the non-biologically related parent and the child.

For couples who have a court order recognizing the non-biological parent as the legal parent, whether through a parentage determination or through an adoption, the non-biological parent is very likely going to have more rights when it comes to custody and placement and more responsibilities as it relates to child support. But for separating couples who did not go through the process of receiving a court order to establish the legal parentage of the non-biological parent, the issues are far more complex in Wisconsin. In a traditional divorce setting, this may result in the non-biological, non-adoptive parent not being awarded legal custody and physical placement of the children. If this were to occur, a non-biological and non-adoptive parent may be able to petition for visitation with the children, but visitation merely refers to the right to visit with the child for a designated amount of time. It does not give the parent the right to make decisions about the child.

Additionally, if the couple used a known sperm donor or surrogate and did not sign an agreement prior to conception, and if the couple did not subsequently pursue a Termination of Parental Rights with the known donor or surrogate, the donor or surrogate may have a legal claim to custody and placement of the children.

If your partner and you are considering having children, be sure to consult with an attorney first. Doing so many help protect your family from additional pitfalls and complexities in the future. Similarly, if your partner and you are considering a separation and you have children, be sure to consult with an attorney who is knowledgeable about same-sex family planning in order to resolve potential issues that could have a detrimental impact on your parental rights.

The issues discussed above are just a few considerations to keep in mind regarding LGBTQ divorcing couples in Wisconsin. The unique legal issues impacting the LGBTQ community are ever-evolving, and the best way to stay on top is to regularly communicate with an attorney knowledgeable about LGBTQ family planning.

-Abby Churchill, JD
Associate, Koritzinsky & Karls, LLC
414 D’Onofrio Drive, Suite 300
Madison, WI 53719
Phone: (608) 833-7799

koritzinskykarls.com/