Same-Sex Marriage Issue Has Interesting Legal Elements

By Attorney Gregg Herman
November 26, 2003

Although the Wisconsin legislature failed to override Gov. Jim Doyle’s veto of legislation to define marriage as between a man and a woman, the issue may be moot if other states recognized same-sex marriage. If so, Wisconsin may be required by the United States Constitution to give full faith and credit to the laws of these states. Under these circumstances, what would be the legal effect of such unions?

Before we go any further, a disclaimer: It is not the purpose of this article to take a position as to whether this legislation should or should not be enacted. Certainly, all divorce lawyers, from strictly a business point of view, should support such legislation since if there are same-sex marriages, dissolving the union would require same-sex divorces. Perhaps for that reason, some proponents of same-sex union seek only the legal advantages of marriage, such as spousal employment benefits and societal recognition, without requiring a full-fledged divorce upon termination of the relationship. Again, this articles does not seek to editorialize, but only to comment on the legal ramifications.

Absent full legal status arising from a marriage, same-sex couples have the same rights as opposite sex couples who cohabit. Under current Wisconsin law, cohabitants may have a civil cause of action for unjust enrichment upon termination of the cohabitation. 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). However, Wisconsin law does not allow such a claim for what is sometimes called “palimony”. Thus, unlike a maintenance claim, merely performing household services does not give rise to claim of unjust enrichment. Rather the 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. Merely sharing living expenses does not give rise to a cause of action. Ward v. Jahnke, 220 Wis. 2d 539, 583 N.W.2d. 656 (Ct. App. 1998).

As a result, the remedies which can be sought under Wisconsin law are essentially limited to a property division award. In many cases, this may be the only remedy available in any event. However, unlike the termination of a marriage where maintenance is available to a non-working spouse, in a non-marital relationship, 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 non-marital relationship is significantly different, as well. In a marital relationship, even if there is no maintenance claim and if the property division issues 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 are daunting and the process can be confusing. On the other hand, a cohabiting couple under these circumstances 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 legal process is well recognized with forms widely available.

On the other hand, 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 inventing pleadings is more expensive than simply filling in a form. Of course, as a civil lawsuit, jury trials may be available, which would also significantly increase the costs of the legal process.

When same-sex couples have children, the legal analysis is even more complicated. Where one partner is genetically the 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. Such a petition does not have a substantial basis in Wisconsin statutes, but would have to rely on a supreme court case which rests on the equitable powers of the court and the best interests of the child, In re Custody of H.S.H-K, 193 Wis. 2d 649, 533 N.W.2d 419 (1995) notwithstanding other supreme court cases have held that the power of a family court is limited to those expressly conferred by statute. .

To many proponents of same-sex marriage, the legal analysis is irrelevant as their interest is societal recognition. To opponents, the arguments tend to rely on moral and sometimes religious grounds. Both sides, however, should consider all of the legal consequences to both parties and to any children.

This article orginally 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.