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Divorce remains complicated for gay and lesbian couples

It has been over a year since federal Judge Barbara Crabb overturned Wisconsin's ban on same-sex marriage. However, some of the rights of gay and lesbian couples in Wisconsin remain unclear today, particularly when it comes to divorce.

If you are facing the end of your marriage to a same-sex spouse, you may have a number of questions regarding your rights and options.

Same-sex couples in Wisconsin encounter a variety of issues when divorcing, including:

  1. Child custody and placement: Your parental rights are simply not as straightforward as they are for those in heterosexual marriages. In Wisconsin, under the marital presumption of parentage, a husband is the legal father of a child born to the wife during marriage. But a patchwork of laws affecting same-sex couples across the country for decades have long made it difficult for gay and lesbian parents to gain equal parental rights. Your rights and obligations regarding child custody, placement and child support will hinge on whether the state recognizes you as the child's legal parent.
  2. Maintenance (alimony): The length of a marriage is a factor when it comes to awarding maintenance in Wisconsin. No gay or lesbian couples were married in Wisconsin prior to June 6, 2014, but some couples had married in other states where it was legal and returned or relocated to Wisconsin. So, if you were married in 2008 in Iowa, have you been legally married eight years or 18 months? The answer to this question affects how much maintenance you could pay or receive.
  3. Property contracts: Prior to the 2014 ruling, some same-sex couples took matters into their own hands. Without the right to marry and gain protection under family laws, some couples entered into written property agreements. You will need to understand how any pre-marital property agreements could come into play in your divorce.

The answers to all of these questions are subject to evolving laws and their interpretation. A cooperative divorce approach is the best possible option for most divorcing same-sex couples in order to best navigate these difficult legal issues. This would allow you and your spouse to determine the terms of your divorce, taking control over your future instead of leaving this up to a judge.

The first step you should take is to meet with an experienced family law attorney. Founded in 1997, the Milwaukee law firm of Nelson, Krueger & Millenbach, LLC, practices family law exclusively. We offer free initial consultations and would be happy to answer your questions. Contact us today to schedule a consultation.

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