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Do Same-Sex Marriages now mean Same Sex Divorces?


The United States Supreme Court on Friday June 26, 2015 rendered a landmark decision in ruling by a 5-4 vote that the United States constitution guarantees a right to same-sex marriages. This is a long hard fought battle for the gay rights movement. Friday’s historic decision started in 2013, after the United States Supreme Court ruled in a separate case that same-sex spouses must be afforded the same federal benefits as other married couples. In that ruling, though the court did not address the issue of whether gay marriage as afforded constitutional protection.

In light of the case of United States v. Windsor, Jim Obergefell, who was a real estate broker in Ohio, and his partner of 20 years who was dying, were married in Maryland. However, in Ohio, the legislature had passed a ban on same-sex marriages and refused to recognize Obergefell as a “surviving spouse.” The U.S. Court of Appeals for the Sixth Circuit ruled in favor of the state of Ohio and determined that Ohio did not have to recognize same-sex marriages where the couple had been married in another state that did recognize same-sex marriages. This case along with other cases on similar issues than were consolidated to be heard by the United States Supreme Court, with arguments having been heard back in April of this year.

Massachusetts became the first state in the country to legalize same sex marriages back in 2004. Prior to yesterday’s historic decision, 36 states had enacted laws, including the District of Columbia that recognized same-sex marriages in some form, including the state of Wisconsin.

Now that same-sex marriages are legal throughout the United States, I can’t help but wonder whether over time, we will see gay couples in divorce court, no different than heterosexual couples who get divorced. Under Wisconsin Chapter 767 (the divorce code), the law affords no distinction between heterosexual couples getting a divorce and same-sex couples who wind up in divorce court. There may be issues of spousal support, property division, debt allocation, and perhaps even issues relating to minor children, the same as there would be for non-gay individuals. Will the incidence of same-sex couples getting a divorce follow the national trend of heterosexual couples who wind up in divorce court (give or take somewhere between 48% to 50%)? Only time will tell. What I do know is this; going through a divorce can be a traumatic event in a person’s life, sometimes on the level of losing a loved one who has died. I expect the same battle grounds, the same emotions, the similar cries of “it is unfair” once we start to see same-sex individuals whose marriages have failed. While many applaud the landmark decision in support of gay rights with yesterday’s United States Supreme Court ruling, the old saying is “be careful what you wish for.” Now that gay individuals have the right to marry, it also brings the right ultimately to divorce, if the marriage doesn’t work.

If you are in a same sex marriage and thinking of divorce, contact one of the experienced family law attorneys at Karp & Iancu, S.C. for a free and confidential first meeting.


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