Same-Sex Divorce in Wisconsin

Soon after same-sex marriages were legalized, the court had to figure out how same-sex divorces worked. Now, divorces are pretty similar for same-sex, LGBTQ+ people and cisgender, heterosexual people. However, the laws were originally written for cisgender, heterosexual couples, so some things are more complicated for same-sex or queer couples.

Whether it be for divorce or another type of family law, you need an attorney you feel safe and comfortable sharing your story with.

Finding this kind of attorney can be more difficult for LGBTQ+ individuals. At Sterling Law Offices, we support the LGBTQ+ community and fight for the best outcomes for their families.

Below are some specific situations that apply to many same-sex couples.

How Same-Sex Divorces Differ

For the most part, the court treats divorces the same no matter who you are. That being said, there are certain aspects of LGBTQ+ families that have legal implications.

The following aspects and situations do not have guaranteed legal outcomes. So, the best way to get what you deserve is to have an experienced attorney helping you along the way.

Domestic Partnerships

As of April 1st, 2018, Wisconsin stopped accepting applications for domestic partnerships. Any current domestic partnerships are still valid, but they are no longer created.[1]

Many same-sex couples had domestic partnerships because it gave them rights and benefits similar to marriage. Many of those domestic relationships later turned into marriages once it was legalized. This transformation impacts future situations because the partnership proves a concrete relationship before marriage. This can affect things like property division, spousal support, and child custody.

Establishing Parentage for Artificial Inseminations

The first step of child custody is establishing parentage. Wisconsin statutes say that the husband is still the father when someone is artificially inseminated.[2] This statute was later extended to same-sex couples in the case Torres v. Seemeyer.[3]

So, if a married person gets pregnant with legal proof of the other party’s consent, that other party is the child’s legal parent.

Adopted Children

Whether a child was adopted by a same-sex or opposite-sex couple, both parents have equal rights to the child in a divorce. Wisconsin's child custody laws outline those rights.

Both parties also have equal rights when one party is the biological parent of a child and the other party adopts the child.

Marriage Length in Spousal Support

One of the key factors of spousal support is the length of the marriage. But, same-sex marriages were not legal in Wisconsin before 2014, so their marriages can only be so long. This means it may be harder for same-sex couples to get spousal support.

The court has seen many opposite-sex relationships that had long-term relationships before marriage. In these cases, it is up to the judge how much they value their time together before the marriage when deciding on spousal support.

Similarly, for same-sex couples, it is up to the judge whether they value the relationship before the marriage. Since same-sex couples could not get married before 2014, some judges give them a little more leeway. And, like always, having an attorney to effectively argue your side helps.

Premarital Property

Property owned by one spouse before marriage is separate property. Separate property is not split in a divorce unless it is commingled. If the property is shared with the other party in some way, it is commingled and gets split.

When a couple shares property before marriage, it is still commingled. This makes property division fairer for same-sex couples that were unable to get married. It can be harder to get an asset ruled as commingled without being married though.

Property may be divisible without being married under the Watts v. Watts case.[4]

Frequently Asked Questions

How do same-sex couples divorce?

Same-sex couples divorce the same way opposite-sex couples do. There are a few situations that are more common for same-sex couples, but the court has handled them all before.

Can same-sex couples be common law married?

Wisconsin does not have common law marriages for anyone. The only way to be married according to Wisconsin law is to get a marriage license.


References: 1. Imminent Demise. Krimmer, Christopher. (2018, Feb 7). State Bar of Wisconsin. | 2. WI Statute, § 890.40 (1). Presumptions. | 3. Torres v. Seemeyer. 207 F. Supp. 3d 905 (W.D. Wis. 2016). | 4. Watts v. Watts. 137 Wis. 2d 506 (1987).


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