Potential Chaos

By Attorney Gregg Herman
June 10, 2015

An article in the Wisconsin Law Journal discusses the potential chaos if the US Supreme Court rules against same sex marriage.

As I’ve discussed in prior blogs, I have an interest in the ruling as same sex marriage would be good for my business!  The more marriages, the more divorces (unfortunately for everyone except divorce lawyers).  In fact, in one of my columns in the Wisconsin Law Journal, I speculated on the potential differences between same-sex and opposite sex divorces.

The potential chaos is immense.  Consider, for example, a couple married last year in Wisconsin after the Court of Appeals struck down Wisconsin’s ban on same-sex marriages.  If the US SC holds that there is not a constitutional right to marriage, chances are the Wisconsin Constitution, which was amended to define a marriage as between a man and a woman, goes back into effect.

In addition to prohibiting future marriages, what happens to those married after the CA decision but before the SC decision?  Are those marriages void ab initio?  If so, what happens if they had filed joint tax returns for 2014?  Or if one “spouse” had died in the interim?  Do they have to re-do any beneficiary designations and estate plans made in the interim?

The list of possible chaos can go on and on.  Which is one reason the betting is that the US SC makes this a non-issue with their decision.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.