Same Sex Divorce

Experienced Milwaukee Same Sex Divorce Attorneys Stay Informed On Evolving Laws and Protecting Your Rights


Robust legal representation for complex divorce matters

While many LGBT couples in Wisconsin are well aware of how quickly the law has progressed recently regarding the right for same-sex couples to marry in Wisconsin, they may not be aware of the profound extent to which this rapid evolution has affected other areas of law. Possibly the most notable issues to arise relative to the question of same-sex divorce, which has been in flux as divorce law attempts to catch up to marriage law. Because of this, many in the LGBT community in Wisconsin and elsewhere are uncertain as to how the change in the law affects both their relationship and their personal rights under the law.

At the law offices of MacGillis Wiemer LLC, our team of knowledgeable Milwaukee same-sex divorce attorneys have more than twenty years of combined experience working diligently to represent clients seeking divorce. We stay abreast of this dynamic area of law in order to provide the high level of skilled legal counsel you need.

What types of issues are unique to same-sex divorce in Wisconsin?

Besides not permitting same-sex marriages prior to October of 2014, the state of Wisconsin also did not recognize any existing same-sex marriages performed in other states. On a practical basis, this meant divorce was simply not necessary for LGBT couples in Wisconsin seeking to end such marriages. While it may have been possible to seek a divorce in the state in which they were married, for some couples, meeting the residency requirements for divorce in those states was unrealistic.

For some, Wisconsin’s sudden legal recognition of a long-dormant marriage had an immediate impact. Questions suddenly presented included:

  • Community property—Wisconsin state law provides that upon divorcing, each spouse is entitled to half of all marital property—and absent evidence showing otherwise, all property owned by either spouse is presumed to be marital property. Upon legal recognition of their quiescent out-of-state marriages, some in the Wisconsin LGBT community faced the possibility that an erstwhile spouse was suddenly entitled to half of their property, including property obtained after the separation.
  • Bigamy—Prior to October of 2014, spouses legally married to same-sex partners in other states were legally entitled to subsequently marry opposite-sex partners in Wisconsin without running afoul of Wisconsin’s bigamy statute.
  • Duration of marriage questions—Family law judges routinely consider the duration of a marriage in determining matters of property division and spousal support. However, since so many in Wisconsin were prevented from legally marrying for so long, fixing a precise start date to a relationship predating October of 2014 can be difficult.

Wisconsin court and legislators have only begun to address these and other newly-spawned issues.

When same-sex couples divorce, what happens to the couple’s children?

Another complication of same-sex divorce arises in disputes over child support and child custody. Some of the state’s parentage provisions are gender-specific; in Wisconsin, the husband is automatically the legal parent of any child conceived by or born to his wife during the marriage. This bypasses the need for a man to legally adopt a child when he is not the biological father. No such right exists outside of this opposite-sex marriage context.

Parenting rights in same-sex relationships can be more complicated. Prior to October of 2014, same-sex couples were not permitted to jointly adopt children, and were not granted any parenting rights through Wisconsin’s domestic partner registry. While couples were entitled to enter into so-called “parenting agreements”, the enforceability of such agreements has been challenged. Guardianship was another option for LGBT parents prior to October of 2014.

Although Wisconsin now permits the spouse of a legal parent in a same-sex marriage to adopt the child, the lack of legal options available prior to October 2014 can come into play in a same-sex divorce, even if the children were born during the relationship.

Knowledgeable Milwaukee divorce attorneys carefully navigate same-sex divorce

The experienced Milwaukee same-sex divorce attorneys at the law firm of MacGillis Wiemer LLC assiduously monitor every development in the area of same-sex divorce law in order to provide informed, aggressive legal representation. If you are seeking a same-sex divorce in Wisconsin and are unsure of your rights under the law, we urge you to call us at (414) 727-5150, or contact us online to learn more. Our office is on West Bluemound Road, convenient to I-94 at exit 304 in Wauwatosa.