Rewriting the Book on Marriage

By Attorney Gregg Herman
February 18, 2015

With same-sex marriage now legal in 36 states — and probably legal in all 50 after the U.S. Supreme Court rules next summer — same-sex divorces will follow in due course.

Will there be any differences between opposite-sex divorces and same-sex divorces?

Procedurally, the answer is, “yes, a little.” As authors of the “System Book for Family Law,” published by the Wisconsin Bar Association, my office is working on the next supplement. In it, we are changing certain forms which use the terminology “husband” and “wife” and giving other options, such as using first names. For example, I find a high risk of error in Marital Settlement Agreements that use “Petitioner” and “Respondent,” as it is easy to forget which party is which in an individual case. Therefore, we have traditionally used “Husband” and Wife.” That won’t work for a same-sex couple, so with apologies to the few family court judges who dislike parties being called by their first names, it seems to be the easiest alternative when there are two husbands or two wives.

The larger problem is the joint petition which differentiates between the parties as “Joint-Petitioner Husband” and “Joint Petitioner Wife.” We haven’t figured that one out yet and we welcome any suggestions.

Procedure is the easy part. The tougher question is whether same-sex divorces will be any different substantively. Of course, the technical answer is no, as the law is supposed to be gender-neutral. But, many a slip has been caused by the gap between theory and reality.

It may be years before there is even any anecdotal evidence of any difference. In short-term marriages, property tends to be returned to whoever owned it prior to marriage as a deviation from an equal property division. Also, maintenance generally does not become an issue until marriage is at least a few years old, and is generally not a major issue until the marriage length reaches double digits. It will be a while before same-sex marriages reach mid-term status, much less long-term. In the interim, neither property division nor maintenance orders will likely be any different than in opposite-sex marriages.

What about 10 to 20 years down the road, though? As Yogi Berra famously (supposedly) said: “Predictions are very difficult to make, especially about the future.” Still, this column is designed not just to educate, but also to entertain. Besides, it is a safe bet that 10 to 20 years from now, no one will recall this column anyway. So, caution to the wind.

Yes, I believe that the “play out” of same-sex marriages will differ from that of opposite-sex ones in certain ways. For one, if same-sex couples can marry, they should be able to have families, as much as biology and adoption laws allow. So surrogacy law — which in Wisconsin consists of exactly one case, Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634 — needs expansion. Divorce lawyers and courts will need to learn about surrogacy and adoption and how it applies among the varying gender possibilities.

It will be interesting to see the development of support agreements and orders. Technically, of course, support laws are gender-neutral. But, this neutrality seems to be more commonly applied in child support matters, undoubtedly due to the guidelines.

Spousal support is another matter. Anecdotally, it seems far easier to get spousal support — more of it and longer — for a woman than for a man. My guess is that the biological requirement for a uterus to give birth makes it more common for a woman to get pregnant and, in turn, to have a maternity leave. Therefore, it is more common for women to make the sacrifices in a marital relationship, which result in less ability to create income in the future if the marriage fails. So my prediction is that spousal support awards will be better in same-sex female marriages than same-sex male marriages, at least where one of the females gave birth.

Only time will tell if these predictions come true. In the meantime, I’m going to get to work modifying the forms.

This article originally appeared in Wisconsin Law Journal.

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