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What Issues Do Same-Sex Couples Need to Be Aware of During Divorce?

Posted on in Divorce

Milwaukee, WI LGBT divorce attorney

By Attorney Max Stephenson

While same-sex marriage has been legal for several years in Wisconsin and nationwide, some novel and difficult issues related to same-sex divorce continue to be considered by the courts. Those going through a same-sex divorce should be aware of these issues and the possible outcomes that may result.

History of Same-Sex Marriage in Wisconsin

Same-sex marriage was recognized in Wisconsin in October 2014, about nine months prior to the U.S. Supreme Court decision in the case of Obergefell v. Hodges, which recognized gay marriage nationally. Even further back in history, Wisconsin established domestic partnership laws in 2009. Domestic partnership allowed same-sex partners to receive many of the same rights given to opposite-sex married couples.

Just as same-sex couples are afforded the right to marry, they are also afforded the right to divorce. However, given the history of changing rights that unfolded over a period of years at the state and national level, there are still some legal issues in which the answers may not be clearly defined during a same-sex divorce in Wisconsin.

Same-Sex Divorce Issues

One issue that has not been fully litigated is whether a court will view a marriage as having started on the date a couple chose to be married or the date same-sex marriage was recognized by the state. This issue could come up in the context of setting alimony awards, a process which takes into account the duration of the marriage.

Another issue that regularly arises in same-sex divorces is how to handle child custody and child support. In some instances, only one parent will have adopted the child or be considered to have a legal relationship with the child by virtue of being the child’s biological parent. This could pose complications, as the non-adoptive/non-biological parent may want to continue to have a relationship with the child, but they may not have the legal footing to petition a court for custody or placement.

Legal experts predict that those in same-sex marriages may also face other issues in the context of estate and probate litigation and medical directives. Same-sex couples should consult with an attorney to ensure that their rights are protected in these cases.

Call a Milwaukee LGBTQ Divorce Lawyer

If you are contemplating a same-sex divorce, you should hire legal counsel that has been closely monitoring this area of law. There are many novel legal questions that can arise in these cases, many of which have not yet been identified. This means that there may not be a clear rule for the court to follow. In these circumstances, you need an attorney with extensive experience in family law who can make compelling legal arguments to the court that are in your best interests.

Our divorce attorneys have practiced family law for decades and are ready to represent clients seeking a divorce in both same-sex and opposite-sex marriages. Give our reputable Milwaukee, WI same-sex divorce attorneys at call today at 414-271-1440.

Sources:

http://wisconsinlawreview.org/marriage-equality-comes-to-wisconsin/

https://www.oyez.org/cases/2014/14-556

 

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