FAMILY LAW: Same-sex marriage — be careful what you wish for

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Recently, New York became the sixth and largest state to recognize same-sex marriage. If the current trend continues, more and more states will legalize it.

But, before we go any further, a disclaimer: It is not my purpose to opine as to whether this legislation should be enacted by a state. Certainly, all divorce lawyers, from strictly a business point of view, should support such legislation. As the joke goes, the leading cause of divorce is marriage. This article does not seek to editorialize, but only to outline on the legal ramifications and discuss the pros and cons of the different means of ending relationships.

The status quo

Same-sex couples have the same rights — or lack of rights — as opposite-sex couples who cohabit.

Under Wisconsin law, cohabitants may bring a civil unjust enrichment claim upon termination of the relationship. Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987); Lawlis v. Thompson, 137 Wis. 2d 490, 405 N.W.2d 317 (1987).

Unlike maintenance, where the parties were married, in a cohabitation, performing household services does not give rise to claim for reimbursement. Rather, services must be linked to an accumulation of wealth or assets during the relationship. Waage v. Borer, 188 Wis.2d 324, 525 N.W.2d 96 (Ct. App. 1994). There must be proof of specific contributions that directly led to an increase in assets or accumulation of wealth. Ward v. Jahnke, 220 Wis. 2d 539, 583 N.W.2d.656 (Ct. App. 1998).

The remedies that can be sought are limited to the equivalent of property division. Unlike the termination of a marriage, where maintenance may be available to a non-working spouse, Wisconsin does not allow a “palimony.” So, for example, if one member of the couple took on the traditional “homemaker” role during the cohabitation, any increased earnings of the other partner cannot be compensated.

The process for ending a nonmarital relationship is significantly different, as well. In a marriage, even if there is no maintenance and the property division can be worked out informally between the parties, the legal process of divorcing is still necessary. While many parties in these circumstances can proceed pro se, the forms can be daunting and the process confusing. On the other hand, a cohabitating couple can simply separate and no legal process is required.

Where there is disagreement (not uncommon when the emotional levels escalate) when the union ends, the divorce process is well recognized with forms widely available. However, a cohabitation lawsuit is a civil case, without standard forms and processes. As a result, if lawyers are needed in a cohabitation case, the cost may be significantly higher, as drafting pleadings is more expensive than simply completing forms. In addition, jury trials may be available, which could significantly increase the costs.

Property division

Property division also differs significantly between the two processes. For married couples, depending on the state, there are typically community property or equitable distribution statutes that create a template for “who gets what.” Absent such statutory schemes, the property division can be more difficult to ascertain. For example, absent the availability of QDROs for dividing retirement plans, equal divisions of property may be impossible without incurring significant tax ramifications.

Couples with children

When same-sex couples have children, the legal analysis is more complicated. If the couple is married, certain presumptions generally apply and courts could award custody and placement based on a standard analysis (with no fear of being accused of gender preference!). Absent recognition of a marital status, however, biology becomes critical. Typically, where one partner is the genetic parent, the other partner, absent an adoption proceeding, does not have the legal presumptions available to a married spouse. Rather, the non-biological partner may have to petition for visitation based upon the relationship with the child.

Wisconsin has recognized that courts have jurisdiction in equity to act in the best interests of a child by ordering visitation where the petitioner has had a parent-like relationship and a significant triggering event justifies state intervention. In re Custody of H.S.H-K, 193 Wis.2d 649, 533 N.W.2d 419 (1995). There appears to be little difference in Wisconsin between “visitation” and “placement.” Rick v. Opichka, 2010 WI App 23, 323 Wis. 2d 510, 780 N.W. 2d 159.

Still, the law and practice regarding custody and visitation between opposite-sex partners is better developed — and therefore easier to access — than where the couple is of the same gender.

Debt allocation

The debt allocation differs significantly as well. For a married couple, any debt incurred during the marriage may allow the creditor recourse against either couple under Chapter 766. No such recourse would be available if the couple were merely cohabitants. Of course, this is an advantage to certain partners — and disadvantage to others.

The legal ramifications extend well beyond family law — marriage affects health insurance eligibility, Social Security rights, inheritances, hospital visitation, worker’s compensation benefits, consent for medical treatment and much more. Some of these benefits can be extended by a domestic partnership law enacted by an individual state. Others, particularly those involving federal law like retirement plan divisions and Social Security benefits, cannot be extend without amendments to existing federal law.

Notwithstanding the increasing number of states extending such rights, don’t hold your breath for the federal government to change existing law in today’s political environment.

No perfect solution

For all of the benefits of marriage, a same-sex couple would be required to incur all of the detriments of divorce if the relationship fails. On the other hand, absent recognition as being married, substantial benefits are not available.

Trying to have one’s cake and eat it, too (e.g., domestic partnerships or civil unions) may leave one quite hungry as the middle road does not extend the full panoply of rights, either.

To some proponents of same-sex marriage, it doesn’t matter. They want the same treatment under the law as heterosexual couples, notwithstanding any attendant costs. For a personal philosophy, that’s perfectly valid. From a legal viewpoint, however, the saying that comes to mind is: Be careful what you wish for.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. He can be reached at [email protected].

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