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  • November 05, 2014

    Same-Sex Marriage Now a Reality, but Legal Issues Still Linger

    Same-sex marriage is now the reality in Wisconsin. But lawyers and same-sex couples will still encounter many legal questions that are still unanswered. In this article, attorney Christopher Krimmer raises various legal issues and offers some solutions.

    Christopher S. Krimmer

    Same-sex marriageNov. 5, 2014 – Same-sex marriage is now the reality in Wisconsin. On Oct. 6, 2014, the U.S. Supreme Court declined to hear Wisconsin’s same-sex marriage case, Wolf v. Walker, and let stand the U.S. Court of Appeals for the Seventh Circuit’s decision that Wisconsin’s same-sex marriage ban violated the Equal Protection rights of same-sex couples.1

    But, what does that mean in the context of all the rights and obligations associated with the peripheral issues of marriage such as divorce, marital property law, and domestic partnerships? Admittedly, this article raises more questions than answers, but is intended to encourage attorneys to consider the unique issues involving same-sex marriage. The following are four examples that impact the family law attorney.

    What is the Commencement Date of the Marriage?

    The commencement date of a marriage is an important date for many legal purposes, including, but not limited to, Social Security benefits, maintenance, property division, and marital property.

    Marital property law creates presumptions about debt incurred during the marriage, the classification and ownership of property, and a spousal duty to act in good faith regarding finances.2 The marital property laws apply to couples who reside in the state and marry, or the date of which both parties move to the state as a married couple, whichever last occurs.3 When do we apply marital property law to gay and lesbian couples who married years earlier in a state that recognizes same-sex marriage but that marriage was not recognized by Wisconsin until Oct. 6 of this year?

    For example, let’s assume Fred and Jon have been in a committed relationship for 20 years. Let’s also assume they married 10 years ago in Boston where same-sex marriage has been legal since 2004.4 When does Wis. Stat. chapter 766, our marital property law, apply to their marriage? Ten years ago when they married in Massachusetts? On Oct. 6, 2014, when Wisconsin started to recognize same-sex marriage? The answer can have a substantial impact on the couple’s assets and debts. For example, if Fred incurred significant credit card debt during the past 10 years, is it fair for Jon to be liable for those debts as well as his spouse? If so, how do we reconcile assigning this debt as a marital obligation to Jon when Jon did not enjoy any of the benefits of the marriage while Fred was accruing this debt? Can a debt be incurred in the “interest of the marriage” when a Massachusetts same-sex marriage was first recognized as a marriage in Wisconsin on Oct. 6 of this year?5

    Christopher KrimmerChristopher Krimmer (U.W. 1997) is a partner at Balisle & Roberson S.C. in Madison, practicing exclusively in the area of family law. He’s also an adjunct law professor at Marquette Law School, and was recently admitted into the Academy of Matrimonial Lawyers. Reach him by phone at (608) 259-8702, or by email.

    The determination of when the couple married also plays a significant role if the couple should divorce. The length of the parties’ marriage is a statutory factor in determining both property division and maintenance.6 Let’s assume Fred and Jon in the above example decide to divorce in October 2015. Will this couple have been married for one year (i.e., the length of time between Oct. 6, 2014 and October 2015)? 11 years (i.e., the length of time between the date of the marriage in Massachusetts to the date of the divorce action)? Or, 21 years (i.e., the length of their relationship on the theory they would have married but for the unconstitutional ban on their marriage)?

    The spouse with greater assets or income may be more inclined to argue that the marriage should be viewed as only a year in length. The spouse seeking an equal division of assets or maintenance may want to argue that the marriage was the full 21 years of their relationship, or at least the 11 years since they married in Massachusetts.

    Marriage is a civil contract between the parties and the state.7 If the couple married in Massachusetts with full knowledge that Wisconsin did not recognize their marriage, did they knowingly contract to have the family codes apply to their marriage if their relationship ended? An opposite-sex couple who marries in Las Vegas while on vacation understands that when they return home to Wisconsin that they will remain married in Wisconsin. The same is not true for Fred and Jon who married in Massachusetts with full knowledge that their marriage would not be recognized in Wisconsin.

    We can assume that they would have wanted all the protections and obligations associated with marriage in Wisconsin, but the reality was quite different. Is it fair for a court to retroactively apply all the duties and responsibilities of a spouse to a marriage when that same spouse did not enjoy any of the legal benefits and rights of marriage during those same years?

    For the foreseeable future, the answers to these questions will be a discretionary determination by each court on a case-by-case basis. In the context of divorce, the court could consider a party’s premarital contributions to the relationship in some limited circumstances.8 In the example of Fred and Jon’s marriage, the court could find the length of the marriage to be one year or 11 years, and still consider the parties’ contributions for the duration of their 21 year relationship. A court can also rely on the “catch-all” statutory factor in determining property division and maintenance which allows the court to consider “such other factors s the court may in each individual case determine to be relevant.”9

    The Unintentional Bigamist

    Many gay and lesbian couples who married in another state or jurisdiction have already ended their relationship. Because Wisconsin courts could not recognize the underlying marriage, divorce was not available to them. These former partners have moved on with their lives and conducted their financial and legal affairs as single individuals. They may be shocked to learn that as of Oct. 6, 2014, they are now married under state law to their former partners. A divorce will likely be necessary.

    In some situations, a spouse may have married a new same-sex partner or even an opposite-sex partner. What now? The person is now married to two spouses. Did the person have the legal capacity to enter into the second marriage? At the time of the second marriage, the person was not married under state law. Yet, as of October 6, 2014, same-sex marriages that occurred must be recognized as valid marriages.

    At first glance, an annulment of the first marriage would seem to be the solution. Yet, the annulment statute is very specific as to the grounds for an annulment, and in most cases, none of those grounds would apply for most marriages.10

    The annulment is an option for a marriage to be annulled if the “marriage is prohibited by the laws of this state.”11 This may have been a valid basis prior to Oct. 6, 2014, but that argument seems to fall flat now that same-sex marriage is permitted in Wisconsin.

    In addition, if the court was to declare that the first same-sex marriage could be annulled because it was “prohibited by the laws of this state” at the time they entered into the marriage, then how would the court reconcile that finding with the hundreds of gay couples who married prior to Oct. 6, 2014 and wish to remain married? Such a finding would put all same-sex marriages prior to Oct. 6, 2014, into doubt, which clearly runs afoul of what the Seventh Circuit held in Wolf v. Walker.

    The Wisconsin Supreme Court may have offered a solution that allows the first marriage to be voided while still recognizing the validity of the second marriage. Last year, the court held that there is a fundamental distinction between a court’s power to annul a marriage and its power to void a marriage.12 The courts are not restricted to only the annulment statute to void a marriage. In a situation where a spouse may have remarried, an attorney could argue that by entering the second marriage, the court may void the first marriage under these limited circumstances.

    When in Doubt, Affirm

    A same-sex couple who married in another state prior to Oct. 6, 2014, should now have a valid and recognized marriage in the state of Wisconsin. If there is any doubt regarding the length of their marriage, or a question regarding the validity of their marriage, the couple can file an action to affirm their marriage.

    Wis. Stat. section 767.18 states: “If the validity of a marriage is denied or doubted by either of the parties the other party may commence an action to affirm the marriage.”

    Again, the Wolf decision should be conclusive that a same-sex marriage is recognized and valid, but in rare instances, some further clarification or judicial affirmation may be required. In those rare situations when there is concern about the marriage being recognized, an action to affirm the marriage is a viable option for the couple.

    Impact on Domestic Partnerships

    The domestic partnership registry offers same-sex couples approximately 40 rights and benefits traditionally associated with marriage.13 It does not provide any of the responsibilities of marriage. For example, marital property law does not apply to domestic partners nor do they have the protections of the family codes under a divorce action if the relationship ends. If the domestic partners decide to terminate their relationship, they simply file a form with the county clerk and the domestic partnership is terminated 90 days later.14

    Since the domestic partnership registry was enacted, gay and lesbian couples have both registered as domestic partners with the state while also getting married in a state that granted same-sex marriages. This dual legal status allowed the couple to maximize their rights under the law by receiving some of the federal-based benefits of marriage as well as some of the state-based rights of marriage through the domestic partnership.

    Interestingly, if a domestic partner “enters into a marriage that is recognized as valid in this state, the domestic partnership is automatically terminated on the date of the marriage.”15 This didn’t present a problem for same-sex couples since their marriages were not recognized as being valid, so they could enjoy both the status of “domestic partner” and “spouse” for federal purposes. However, now that same-sex marriage is recognized in Wisconsin, these domestic partnerships were terminated effective Oct. 6, 2014. Many domestic partners probably do not realize that they no longer have both the status of “domestic partner” and “spouse.”

    Ironically, same-sex couples now have more options than opposite-sex couples. Domestic partnerships are limited to same-sex couples only. A gay or lesbian couple has the choice to either elect a domestic partnership with the 40-some benefits of marriage and none of the responsibilities of marriage, or they can decide to marry. An opposite-sex couple has only the option to marry or not to marry.

    U.S. District Court Judge Barbara Crabb wrote in her Injunctive Order dated June 13, 2014, that it requires “[E]qual treatment of same-sex couples and opposite-sex couples.”16 There will be some confusion in the foreseeable future of how to best apply this directive in the realities of our clients’ marriages, but these issues offer an opportunity for lawyers and judges to develop law that is reasonable, creative, and equitable.


    1 Wolf v. Walker, Case No. 14-2526 (7th Cir.) (Sept. 4, 2014). See also Joe Forward, Unconstitutional: Wisconsin, Indiana Offer No Good Reasons for Gay Marriage Bans, Seventh Circuit Says, WisBar News (Sept. 5, 2014).

    2 Wis. Stat. § 766.31 (classification of property of spouses); Wis. Stat. 766.15 (responsibility between spouses), and Wis. Stat. § 766.55 (obligations of spouses).

    3 Wis. Stat. § 766.01(5).

    4 Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

    5 Wis. Stat. § 766.55(1) (“An obligation incurred by a spouse during marriage…is presumed to be incurred in the interest of the marriage or the family.”).

    6 Wis. Stat. § 767.56(1) (maintenance); Wis. Stat. § 767.61(3)(a).

    7 Wis. Stat. § 767.01.

    8 Meyer v. Meyer, 2000 WI 132, 239 Wis.2d 731, 620 N.W.2d 382.

    9 Wis. Stat. § 767.61(3)(m) (property division); Wis. Stat. § 767.56(10) (maintenance).

    10 Wis. Stat. § 767.313 (e.g. A party lacked capacity to consent due to alcohol, drugs, or mental incapacity. A party lacks the physical capacity to consummate the marriage and the other party lacked knowledge of the incapacity. A party was 16 or 17 years of age and did not have parental consent to marry.)

    11 Wis. Stat. § 767.313(1)(d).

    12 McLeod v. Mudlaff, 2013 WI 76 (July 16, 2013). See Also Joe Forward, Courts Can Void Marriages After One Spouse Dies, Supreme Court Concludes, WisBar News (July 29, 2013).

    13 Wis. Stat. Chapter 770 establishes the legal status of domestic partnership and the rights associated with the status are identified throughout the statutes in varied chapters. For an excellent summary of those rights, see Howard Sweet, Understanding Domestic Partnerships in Wisconsin, Wis. Law. (Nov. 2009).

    14 Wis. Stat. § 770.12.

    15 Wis. Stat. § 770.12(4)(b).

    16 Wolf v. Walker, Case No. 14 CV 64-BBC, Opinion and Order, p. 10 (June 13, 2014).

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