With Gay Marriage Comes Gay Divorce

This past year, the United States Supreme Court held in Obergefell v. Hodges that every state must grant and recognize same-sex marriage.  While a majority of our country is celebrating our country’s progress, with gay marriage also comes gay divorce.
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Prior to the whirlwind of case law between 2014 and 2015, a Wisconsin court could not grant a divorce to a same-sex couple as the underlying marriage requirement was nonexistent. LGBT couples could be recognized as domestic partners and the courts had the power to terminate such partnerships.  Wisconsin’s marital law did not apply, however, and LGBT couples had only equitable doctrines to rely on for property division.

With this new power to grant marriages to same-sex couples, the application of Wisconsin’s Family Code to a gay divorce becomes a complicated task for attorneys let alone the couple on their own.  For a court to grant a divorce, couples must disclose all assets, debts, and income and allocate all marital property.  Wisconsin’s Family Code takes into account various presumptions and factors in determining and allocating divisible property, such as length of marriage, gifts and inheritances, and contributions to the marriage.  But, the difficulty with a same-sex marriage in Wisconsin is determining at what point the couple is ‘married.’ Is it the day the Wisconsin Supreme Court held it unconstitutional to deny same-sex marriage? Is it the day the U.S. Supreme Court held same?  Or is it the day the couple legally married in another state even though the marriage was not recognized in Wisconsin yet? Without prior case law on determining dates of ‘marriage,’ allocating marital property in a gay divorce becomes an uncertain task and can lead to costly attorney fees, frustrating time in court, and high levels of stress. 

The Family Mediation Center is a positive approach to resolving all issues required by the court with minimum conflict and cost.  The lawyer mediator will guide the couple through the issues and steps in obtaining court approval and team members, including financial specialists and family/child specialists, further assist with helping the couple develop a parenting plan and allocate complex assets including business interests.  The Family Mediation Center is an option for LGBT couples looking for a cooperative approach to Wisconsin’s new same-sex marriage law to create and implement their own divorce agreement.