The fact that marriage equality is now available to same-sex couples in Wisconsin is wonderful news and a significant step toward the civil rights of gay men and lesbians. Yet for some, the recognition of same-sex marriage has been a rude awakening.
Same-sex couples had been getting married for years before those marriages were recognized in Wisconsin on October 6, 2014. They’d been traveling to others states or countries where same-sex marriages were allowed. Massachusetts has been issuing marriage licenses for same-sex couples since 2004 and Canada even before then. The out-of-state marriages offered an opportunity for the couple to express their love, commitment, and affection for one another with the historical distinction of civil marriage. Granted, the marriages had no legal effect in Wisconsin, but they were nonetheless important ceremonial events for gay and lesbian couples.
And now, through the Wolf v. Walker decision, those marriages are finally recognized in Wisconsin. Same-sex spouses now enjoy all the rights, privileges, and obligations of marriage. This is welcome news for many of the couples who are happily married and living together, but it may come as a shock for those couples who have since separated. They find themselves now suddenly married to an ex-partner that they may not have seen in years. What are they supposed to do now?
In most situations, they will now need to get a divorce. The Wolf v. Walker decision not only required Wisconsin to grant same-sex marriages but also to treat same-sex marriages the same way it treats opposite-sex marriages, meaning it must now also recognize same-sex marriages that took place in other states. This can have a devastating impact on a couple who are no longer together. Neither spouse can remarry, they must file either joint tax returns or “married filing separately,” they may need the other spouse’s consent to list anyone other than the spouse as a beneficiary on a retirement or life insurance policy, and they have a good faith duty to the other spouse in the management of their financial assets and accounts. These are only but a few of the hundreds of obligations and responsibilities a spouse owes to the other spouse or the government as a married couple.
If the spouses both agree on the terms of the divorce, then the divorce should be relatively straightforward. The problems arise when the parties do not agree on everything, such as the division of debts, property, and whether one spouse owes the other spouse maintenance (i.e. alimony). Under our “divorce statutes,” the Court is to presume the property and debts are to be divided equally and may award maintenance to the lesser earning spouse. These laws may be objectively fair in the context of an opposite-sex couple who married and enjoyed all the benefits of marriage during their marriage, but is it fair to apply these laws to a same-sex couple who just recently began to enjoy those same benefits and protections?
Same-sex marriage is different from opposite-sex marriage. I am not speaking of the commitment, love, and affection they share, but of the legal aspects of the marriages that took place prior to Wisconsin recognizing same-sex marriage. For example, assume Jill and Becky went to Massachusetts to marry on January 15, 2004. They entered into a marriage knowing that it would not be recognized in their home state, or, at that time, by the federal government. The marriage was an important ceremonial event, but not a legal event, until now.
In contrast, assume John and Becky went to Massachusetts to marry on January 15, 2004. When they entered into the marriage, they had full knowledge that Wisconsin and the federal government would consider them to be married under both state and federal law.
Now, fast-forward eight years later: both couples separate in 2012. John and Becky would presumably get a divorce, which would divide their property and debts and determine whether maintenance should be awarded to one spouse. Now, what about Jill and Becky? In 2012, they were not allowed to divorce since their marriage was not recognized by the state of Wisconsin. Nor could they return to Massachusetts to divorce since Massachusetts requires at least one party to reside in the state to obtain a divorce. They were “wed-locked,” meaning that there was no legal avenue for them to divorce.
Then the Wolf v. Walker decision comes along, and Wisconsin suddenly recognizes Jill and Becky’s 2004 Massachusetts marriage. They will now need to file for divorce, but when the Court considers how to divide their property or award maintenance, how long should the Court consider the couple to have been married?
Marriage is a contract between each spouse and the state. Did Jill and Becky really contract to be subject to all of the obligations and rights of a spouse under Wisconsin law when they married in Massachusetts in 2004, a point in time when Massachusetts was the only state to recognize the validity of their marriage? They knew that once they returned to their home, Wisconsin would not provide them with any of the legal protections or obligations of marriage, even though they very well would have wanted those rights and obligations.
Certainly, John and Becky understood that their marriage would be recognized in Wisconsin once they returned home. The exact opposite was true for Jill and Becky. So at the time of the divorce in 2015, is it fair for the divorce Court to retroactively impose all of the obligations of marriage on Jill and Becky when they did not enjoy any of the benefits, rights, or privileges of the marriage during those same years? For example, is it fair for Becky to be liable for Jill’s credit cards and tax obligations when Becky had absolutely no legal right to say or do anything about Jill’s tax filings or credit card obligations? Or should Jill be required to pay maintenance to Becky when no duty of support was imposed by law during the course of their entire relationship?
Family courts are courts of equity, which means that the court has discretion to achieve a fair outcome for the parties. It is important that the Court recognize this legal distinction between a marriage that enjoyed all of the rights, benefits, and obligations of marriage during the relationship versus a marriage in which the parties operated under the legal premise (mandate) that the marriage was a legal nullity.
The nature of this inquiry will become less relevant over time. It only applies to couples who have been separated or will be divorced in the near future. A couple who remains married with the full recognition of having all the rights and obligations of marriage in Wisconsin will have presumably affirmed their legal status of wife and wife or husband and husband. It may be time for married couples to consider renewing their vows or seeking advice on a Marital Property Agreement.
Christopher Krimmer teaches Sexual Orientation and the Law at Marquette Law School. His law practice focuses on nontraditional-family protections.