Cecily Zamora
Same-sex marriage has been legally recognized in Wisconsin since October 6, 2014, after a lawsuit challenging the state's ban on same-sex marriage was resolved. Despite this, Wisconsin does not recognize common-law marriage, and same-sex couples seeking a divorce in Wisconsin face various challenges, such as determining the date of marriage, child custody arrangements, division of assets, and spousal support. These couples may need to consult with legal counsel to address issues involving common children, estate planning, and property-related matters.
| Characteristics | Values |
|---|---|
| Same-sex marriage recognized | Yes, since October 6, 2014 |
| Common-law marriage recognized | No |
| Same-sex divorce | Allowed, with the same rights and protections as heterosexual couples |
| Same-sex adoption | Allowed, with both parents having legal rights and responsibilities |
| Same-sex marriage evasion law | Yes, with criminal penalties of up to 9 months' imprisonment and a $10,000 fine |
| Same-sex marriage history | Complex, with several lawsuits and challenges |
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What You'll Learn
Wisconsin's history of recognising same-sex marriage
Same-sex marriage has been legally recognised in Wisconsin since October 6, 2014, following a lawsuit challenging the state's ban on same-sex marriage. This lawsuit, Wolf v. Walker, deemed Wisconsin's ban on gay marriage unconstitutional.
Prior to the legalisation of same-sex marriage in Wisconsin, the state had a history of opposing the recognition of these unions. In 2006, Wisconsin voters approved a referendum to amend the state constitution and ban same-sex marriages, with 59% of voters ratifying this decision. Despite this, domestic partnerships were legalised in the state in 2009, affording limited rights to same-sex couples.
The legalisation of same-sex marriage in Wisconsin was a result of the Wolf v. Walker lawsuit, which challenged Wisconsin's refusal to grant marriage licenses to same-sex couples and its refusal to recognise out-of-state same-sex marriages. The U.S. District Court for the Western District of Wisconsin ruled in favour of the plaintiffs, and county clerks in 60 of Wisconsin's 72 counties began issuing marriage licenses to same-sex couples.
Following the legalisation of same-sex marriage in Wisconsin, same-sex couples are entitled to the same legal processes as opposite-sex couples, including divorce. However, due to the relatively recent legal acceptance of same-sex marriage, some issues remain unresolved, particularly regarding divorce proceedings. One such issue is determining the date of marriage for couples who considered themselves "married" before it was legal to do so, which can impact spousal maintenance (alimony) judgements. Another issue arises when children are involved in a same-sex divorce, especially when they were born prior to the legal marriage.
While same-sex marriage is currently legal in Wisconsin, there are still provisions in the state constitution outlawing it. If Obergefell v. Hodges, the case that legalised same-sex marriage nationwide, were to be overturned, these provisions could potentially be triggered. However, according to Larry Dupuis of the ACLU, marriage equality would not immediately be overturned in Wisconsin, even if Obergefell were overturned.
Common-Law Marriage Legality in Wisconsin
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Legal rights of same-sex couples in Wisconsin
Same-sex marriage has been legal in Wisconsin since 6 October 2014, when the U.S. Supreme Court refused to consider an appeal in the case of Wolf v. Walker. This case deemed the state's ban on gay marriage as unconstitutional. The ruling affirmed that same-sex couples in Wisconsin have the right to marry and that this marriage will be recognised as legal throughout the country.
Despite this, same-sex couples in Wisconsin still face legal issues and ambiguity in the law. For example, there is no clear indication of how courts will handle custody for children of same-sex couples. Wisconsin law does not recognise common-law marriage, and the date of marriage is important when addressing issues regarding support. This becomes more complicated when children are involved, especially if they were born before the legal marriage.
Wisconsin's domestic partner registry provided same-sex couples with limited rights, specifically 43 out of the more than 200 spousal rights afforded to different-sex couples. This registry did not grant parental rights or stepchild adoptions. However, same-sex couples could obtain limited rights through a co-parenting agreement or another legal arrangement granted by state courts. In 2016, a federal judge ruled that the state must record the names of both same-sex parents on the birth certificates of their children.
Wisconsin is one of two states that refer to a "husband" in the statutory definition of a parent. Attempts to change this have stalled in the Republican-controlled Legislature. Discrimination based on sexual orientation is banned statewide in Wisconsin, and sexual orientation is a protected class in the state's hate crime laws.
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Common law marriage recognition in Wisconsin
Common-Law Marriage Recognition in Wisconsin
Wisconsin does not recognize common-law marriages. However, same-sex couples in Wisconsin have been able to marry since 2014, and are entitled to the same legal processes governing traditional marriages in the state, including divorce.
History of Same-Sex Marriage Recognition in Wisconsin
Wisconsin has a complex history when it comes to recognizing same-sex marriage. In 2006, the state passed a constitutional amendment banning gay marriage and civil unions. This amendment was challenged in 2009 by political science instructor William McConkey, who filed a lawsuit (McConkey v. Van Hollen) arguing that the referendum violated the State Constitution as it proposed more than one question in a single ballot proposal, which is illegal under Wisconsin law. The Wisconsin Supreme Court ruled 7-0 in McConkey's favour, finding that the ballot measure was proper.
In February 2014, a federal lawsuit (Wolf v. Walker) was filed challenging Wisconsin's refusal to grant marriage licenses to same-sex couples, its refusal to recognize same-sex marriages established in other jurisdictions, and related statutes. In June 2014, Judge Barbara Brandriff Crabb of the U.S. District Court for the Western District of Wisconsin ruled for the plaintiffs, and in the week before she stayed her decision, 60 of the state's 72 counties issued marriage licenses to same-sex couples and even performed marriage ceremonies for some. The state appealed her decision to the Seventh Circuit Court of Appeals, which affirmed it on September 4, 2014, but later stayed implementation pending a decision from the U.S. Supreme Court.
On October 6, 2014, the U.S. Supreme Court refused to hear an appeal of the appellate court ruling in Wolf v. Walker, which had found Wisconsin's ban on same-sex marriage unconstitutional. The next day, the appellate court issued an order prohibiting enforcement of the state's ban, and Wisconsin counties began issuing marriage licenses to same-sex couples immediately.
Legal Recognition of Same-Sex Marriage 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. Same-sex couples in Wisconsin now have access to the same legal rights and protections as heterosexual couples in the event of a divorce, including spousal support, shared property division, and child custody rights.
However, there are still some unresolved issues. For example, it is currently unclear whether marriages that took place before Wisconsin legally recognized same-sex marriages will be recognized as having started on the date of the actual marriage or the date that such marriages became legal in the state. This has specific repercussions on spousal maintenance (alimony) judgments, which are directly tied to the length of the marriage per Wisconsin law.
Additionally, same-sex couples with children may face complexities in divorce proceedings, especially if the children were born prior to the legal marriage and are not considered "marital children" under Wisconsin law.
While Wisconsin does not recognize common-law marriage, same-sex couples in the state have been able to marry legally since 2014 and are entitled to the same rights and protections as heterosexual couples in matters of marriage and divorce. However, some legal ambiguities remain, particularly regarding the date of marriage and the legal parentage of children in same-sex families.
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Divorce proceedings for same-sex couples in Wisconsin
Same-sex marriage in Wisconsin was legally recognized in October 2014 after a lawsuit was resolved, and the US Supreme Court ruled in June 2015 that the US Constitution guarantees the right to same-sex marriage. As a result, same-sex marriage is now legally recognized by all US states.
Wisconsin does not recognize common-law marriage. The only way to be considered married in Wisconsin is to obtain a marriage license. 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 divorce proceedings, ensuring equal rights and protections for all individuals.
However, given the lengthy and disjointed legal acceptance of same-sex marriage, some issues remain unresolved, which could become problematic in the divorce process. For example, it is currently unclear whether marriages that took place before Wisconsin legally recognized same-sex marriages will be recognized as having started on the date of the actual marriage or the date it became legal. This has specific repercussions on spousal maintenance (alimony) judgments, which are directly tied to the length of the marriage per Wisconsin Law.
Same-sex couples seeking a divorce in Wisconsin 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.
When it comes to child custody, Wisconsin statutes say that the husband is still the father when someone is artificially inseminated. This statute was later extended to same-sex couples in the case of Torres v. Seemeyer. So, if a married person gets pregnant with legal proof of the other party's consent, the other party is the child's legal parent. Whether a child was adopted by a same-sex or opposite-sex couple, both parents have equal rights to the child in a divorce.
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. It is important for individuals or couples to consult with experienced legal counsel to ensure their rights and interests are protected.
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Child custody and legal parentage for same-sex couples in Wisconsin
In Wisconsin, same-sex couples are legally entitled to marry and divorce, with the state recognising their right to equal treatment under the law. This includes the right to adopt children, with both spouses automatically considered legal parents of any children born during the marriage, regardless of biological relation.
However, for unmarried same-sex couples, establishing legal parentage can be more complex and may require a court order or legal documentation. This is because, in the case of divorce, child custody and visitation can be complicated and arise before, during, or after legal separation. In Wisconsin, the mother has sole custody of the child until the court orders otherwise, and the child's wishes are just one of many factors considered by the court in deciding placement.
When it comes to divorce, same-sex couples may face some unique challenges due to the laws being originally written for cisgender, heterosexual couples. One issue is determining the date of marriage, as this can impact spousal support and the division of assets. Same-sex couples may have been together for years before they were legally allowed to marry, and it is unclear whether their time together before marriage will be considered in divorce proceedings.
Additionally, if children are involved, the situation can become more complicated, especially if the children were born before the legal marriage. In these cases, the court must determine if both parents have legally adopted the child and if only one parent is biological, whether they have full rights. Therefore, same-sex couples in Wisconsin seeking a divorce are advised to consult with a family law attorney to navigate the complexities of their specific situation.
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Frequently asked questions
Yes, same-sex marriage has been legal in Wisconsin since October 6, 2014, following a lawsuit challenging the state's ban on same-sex marriage.
The lawsuit was called Wolf v. Walker, and it was litigated by the ACLU.
No, common-law marriage is not recognised in Wisconsin. However, cohabiting couples can file a cohabitation agreement to protect their rights in the event of a separation or the death of a partner.
Cohabiting same-sex couples in Wisconsin have similar rights to married couples, including the right to jointly adopt a child. However, they are not entitled to the same rights and protections as married couples in the event of a separation or death of a partner.
