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Same-sex marriage a reality … now what?

James F. Guckenberg of Halling & Cayo

James F. Guckenberg of Halling & Cayo

On Oct. 6, Wisconsin became the latest in a growing number of states to allow same-sex couples to marry.

The change occurred in a relatively quiet fashion, with the U.S. Supreme Court declining to take up cases about the constitutionality of same-sex marriage bans in various states, including Wisconsin. As a result, the court left in place the decision of Judge Barbara Crabb’s June 6 decision.

In response to the U.S. Supreme Court’s action, the Wisconsin Department of Justice posted a news release Oct. 6 stating that, “[a]mong other things, the District Court order requires all state actors to ‘treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.’” The Supreme Court’s decision not to not take up the issue left open the door for same-sex couples to not only obtain marriage licenses, but also receive all of the rights that accompany marriage in Wisconsin.

Same-sex married couples in the state will are now be subject to Wisconsin’s marital property laws, which generally give each spouse and undivided one-half share in their other spouse’s property. This may raise questions for same-sex couples who wish to marry, but who also want to keep some or all of their property separate through prenuptial or postnuptial agreements.

Many same-sex partners living in Wisconsin may have previously created individual estate plans, including wills, powers of attorney for financial and health care issues, trusts, and other planning devices, in an attempt to approximate marriage-like circumstances with their significant other. If those couples now choose to marry, they may need to rethink their individual plans in light of their new status as a married couple. Similarly, same-sex couples who previously took advantage of Wisconsin’s domestic partnership law, may now wish to terminate that arrangement and proceed with a traditional marriage.

Same-sex couples who choose to marry are also in a position to adopt children. Such adoptions could involve a child that is new to both spouses, or one spouse adopting a child the other spouse brings to the marriage.

In addition to “the rights, protections, obligations or benefits of marriage” that same-sex couples are now in a position to enjoy, there are many rights, protections, obligations, and benefits that will come into play for same-sex couples in Wisconsin in the event they wish to end their marriage. Those may include, but may not be limited to, issues such as an equitable division of marital property, custody and placement of minor children, child support, and maintenance.

Even though same-sex marriage is now legal in Wisconsin, receipt of federal benefits by same-sex couples still depends on how marriage is defined in the federal statute or regulation granting the benefit. If the statute or regulation granting the benefit defines marriage based on the place of celebration of the marriage, then same-sex couples who married in a state that recognized it will be eligible for benefits regardless of where they live. However, if the statute or regulation defines marriage as the place where the couple is presently domiciled, then same-sex couples living in states that do not recognize same-sex marriage will not receive those benefits, even if they previously married in a state that recognized same-sex marriage.

Thus, the issue of federal benefits could have serious consequences for same sex-couples who marry in Wisconsin and subsequently relocate. Affected benefits may include, but are not necessarily limited to, immigration status, military benefits, retired military benefits, federal employee benefits, family medical leave, medicaid, medicare, federal taxes, bankruptcy, and private employee benefits.

The Supreme Court’s action also raises the question of how private Wisconsin employers will address the issue of same-sex married employees. In the recent Hobby Lobby decision, the U.S. Supreme Court held that requiring closely held corporations to provide their female employees with no-cost access to contraception violates their religious freedom. Will similarly situated Wisconsin employers claim that treating same-sex married couples the same as opposite-sex married couples also violates their religious freedom? The answer to that question could have far-reaching effects for same-sex married couples.

James F. Guckenberg is an associate attorney with Halling & Cayo S.C. who focuses his practice in family law and estate planning. He has previously presented on the topic of same-sex marriage.

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