Wisconsin Lawyer
Vol. 85, No. 7, July 2012

The numbers may surprise you. Wisconsin ranked second among the states for the largest increase (81 percent) from 2000 to 2005 in the number of gay and lesbian couples,¹ behind only New Hampshire. In 2005, 14,894 Wisconsin couples were in committed gay and lesbian relationships.² The breakdown was relatively equal between gay couples and lesbian couples. In addition, there has been an upsurge since 2005 in the number of gay men and women who are "coming out" and openly dating. The increasing number of reported gay and lesbian relationships, coupled with increased legal protection for same-sex couples, means that it is very likely more gay and lesbian couples are living openly in your community.

Unfortunately, these couples, much like their heterosexual married counterparts, are not immune to breaking up. A family law attorney should be well versed on the legal rights of and remedies available to gay and lesbian couples. Given the statistics, the likelihood is higher now than it has ever been that you will have a gay or lesbian client.

This article discusses the emerging issue of same-sex marriage and how best to offer advice to a gay or lesbian client who was married in a "recognition state"³ but wishes to divorce in Wisconsin. Additionally, the article briefly identifies the legal and equitable claims available to all gay and lesbian couples who wish to separate, regardless if they married in a recognition state or simply cohabitated together in Wisconsin.

Same-Sex Marriage and Same-Sex Divorce

As of the writing of this article, gay men and lesbians may marry in six states and the District of Columbia.⁴ Wisconsin is not one of these states. Indeed, Wisconsin, both by statute and by constitutional amendment, prohibits the recognition of same-sex marriage.⁵ This prohibition does not eliminate the possibility that you may have as a client either a gay or lesbian individual who is married or a business with an employee, customer, or client who is in a same-sex marriage. The couple may have previously resided in a state that allowed same-sex marriage and moved to Wisconsin after their marriage. Alternatively, couples who resided in Wisconsin may have traveled to a recognition state to marry. In either situation, because of Wisconsin law and the federal Defense of Marriage Act,⁶ these couples will not enjoy any of the privileges or benefits of their marriage while residing in Wisconsin.

Married gay men and lesbians are no different from their heterosexual married counterparts with respect to marital difficulties. Approximately 50 percent of heterosexual marriages end in divorce, and it follows that a comparable statistic likely applies to gay and lesbian marriages.⁷ However, the similarities end here. Heterosexual married couples have the option of a divorce and all the legal protections offered under states' family codes.

The process for married same-sex couples who wish to divorce is far more difficult. Can a circuit court judge grant a divorce without first recognizing the marriage? No appellate court has answered this question. If not, then the married gay or lesbian couple cannot obtain a divorce in Wisconsin. This raises many issues. How do the partners separate their property? How is their debt allocated? What, if any, rights to support are available for the protection of the more dependent spouse or the spouse who sacrificed his or her career for the benefit of the marriage? Finally, if children were born during the marriage, what is their legal status and what are the custodial and placement rights of the nonbiological parent? The remedies outside of the divorce-related statutes may be found in a complex hodgepodge of legal and equitable theories litigated not in family court but civil court.

At first glance, it may appear that the best advice would be for the couple to return to the state that granted the marriage to obtain a divorce. The problem is that all the states that recognize same-sex marriage have residency requirements, with the typical minimum residency being some amount between six months and one year. It is unlikely that either party will be able to leave his or her job and move to the forum state just to obtain a divorce. Fortunately, two recent developments may assist these couples.

Washington is the most recent state to pass legislation recognizing same-sex marriage. In Washington, there is no minimum residency requirement, although the petitioner must nonetheless attest to being a resident of Washington. Generally, residency is determined by intent to live and remain in the state. It is possible for a party to reside in Washington for a short time without running afoul of the intent and purpose of Washington's lenient residency requirement. No case law has developed as of this writing to determine just how broadly the residency requirement will be interpreted, but for now, Washington offers an option for same-sex couples who have legally married elsewhere and want to obtain divorces.

The second option is the District of Columbia or Vermont, which recently passed laws that allow nonresident gay or lesbian couples to divorce in their jurisdictions. It is important to recognize the caveat. The couple must have been married in the District of Columbia or Vermont to be able to return to the marital jurisdiction to divorce. Hence, if a couple seeks your advice about where they should marry, explain that the District of Columbia and Vermont would provide them with the most protection.⁸

What can Wisconsin attorneys offer the gay or lesbian client who did not marry in the District of Columbia or Vermont, cannot truthfully claim to live in Washington or Vermont, and wishes to separate from his or her spouse?

Legal Options for Same-Sex Spouses

One option is for the partners to do nothing and hope for the best. Few attorneys embrace this approach and with good reason. It is true that Wisconsin does not recognize the client's marriage, but what will happen if one party moves to a state that does recognize same-sex marriage or if the U.S. Supreme Court recognizes a constitutional right of marriage equality for gay men and lesbians and Wisconsin's constitutional amendment prohibiting same-sex marriage becomes void?⁹

In such an event, the partners' marriage may suddenly become legally recognized in Wisconsin even if they physically separated years ago. Liabilities incurred during those post-separation years could now be marital obligations. Property acquired during those post-separation years could be available for division as marital property. Maintenance will be a factor. Finally, what if one spouse decided to marry again on the theory that the first marriage was never recognized in Wisconsin? If the right to marry is recognized, that person is now suddenly a bigamist. There are far too many uncertainties to recommend that the client "do nothing and hope for the best." Yet, unfortunately, there are some clients who for reasons such as finances will pursue this path of least resistance.

A second option for the couple is to seek an annulment. An annulment would allow a court to enter an order regarding property division, maintenance, child support, and child custody and placement.¹⁰ For a couple to be eligible to obtain an annulment, the parties must demonstrate that their marriage is prohibited by Wisconsin laws.¹¹

A problem with this approach for many couples would be that they would feel uncomfortable alleging that their marriage never deserved any legal recognition and was not equal to any other marriage. No matter how much a person might wish to not be married, I have not yet had a client in this situation willing to state that the marriage was not a legitimate marriage. It runs counter to everything the partners believe about their past relationship, and they feel some responsibility as stewards to the greater gay and lesbian community to not put forth an argument that suggests their marriage was somehow less legitimate than a heterosexual marriage. Nevertheless, it is a viable option for some couples, and some courts have granted annulments in these circumstances.

A third option, which might appeal to the particularly cautious client and attorney, is for the couple to enter into a marital property agreement when they separate. The marital property agreement could do the following:

• Classify the parties' current property and liabilities as individual;
• Classify all future income, property, and liabilities as individual;
• Mandate that each spouse provide a copy of the agreement to any lender extending credit to the spouse after the execution of the agreement so that the creditor is also limited in the collection of future property or income; and
• Provide that any future disputes or legal actions regarding the marriage or relationship (including equitable claims) be resolved by arbitration. The arbitration clause ensures that the dispute will be resolved by an arbitrator (who will be chosen by the parties, thus providing them with assurance that he or she is sensitive to the sexual orientation of the clients and the relationship) as opposed to possibly the assignment of a judge who may be less sensitive.

The marital property agreement likely will have minimal legal significance so long as Wisconsin continues to deny the right to marry to gay men and lesbians. Nevertheless, a marital property agreement serves two important purposes. First, if Wisconsin should ever be required to recognize these marriages by either state constitutional amendment or by a U.S. Supreme Court decision, then the parties have already protected themselves as to their rights at the time Wisconsin recognizes same-sex marriage. Second, if a partner should ever move to another state that does recognize same-sex marriage, the marital property agreement will offer some protection. The premise of the agreement should be along the lines of, "To the extent Wisconsin or any jurisdiction recognizes our same-sex marriage, we agree as to the following...."

Legal and Equitable Claims for All Same-Sex Couples

If none of the above options are attractive to your married client or if the couple never married, recourse via other legal and equitable claims is available. These civil claims, although more often resorted to by people outside of an intimate relationship and more similar to business litigation than to family court proceedings, can be used by a myriad of couples, including opposite-sex couples who never marry, same-sex couples who never marry in a recognition state or country, and same-sex couples who did marry and need an immediate decision regarding the division of their property at the termination of their relationship.

First, if the couple had the wherewithal to enter into a partnership agreement or cohabitation agreement and one party is refusing to honor it, then a breach-of-contract claim is available to the other party. The key to an enforceable partnership agreement or cohabitation agreement is that the consideration should be based on the mutual promises of the parties and not on the intimacy of their relationship. When drafting the agreement, avoid terms such as "lover" and "companion," and use the term "partner" or "party." If either party fails to abide by the property division set forth in the partnership agreement, the party can enforce the contract in court or arbitration if there is an arbitration clause.

Second, if the dispute concerns real estate and both parties are listed on the deed(s), then one partner could file a partition action, which would apportion each party's interest and possibly force the sale of the real estate. In this respect, the same-sex partner is no different than any other co-owner of property, and the relationship of the parties has less significance.

Third, if one partner is withholding personal property from the other partner, the disadvantaged partner may seek possession of the property through a replevin action. Again, the nature of the relationship of the same-sex partners is less significant than whether one partner is in possession of the other partner's legal property.

Fourth, if the partners acted in a manner that implied that there was a mutual understanding and agreement that the property would be shared at the end of the relationship, then either partner may seek equitable relief under a quasi-contract or implied-contract theory. The nature of their relationship can be relevant under this claim because it would make the existence of an implied contract more or less likely, depending on the circumstances. An attorney might want to introduce evidence concerning the length of the relationship; whether the couple had a commitment ceremony, exchanged rings, held themselves out as partners, had joint accounts, or co-parented children; and other behavior, indicating a committed, equal relationship, that would support a conclusion that the parties acted in such a manner that the property accumulated was to be shared equally.

Finally, the most common equitable claim relied on by same-sex partners whose relationships end is unjust enrichment. The house and the majority of assets might be held in the name of only one partner even though the other partner contributed to the acquisition of that property by virtue of contributing financially to the joint household. The court may award some interest in the property to the partner lacking a legal interest in the property under this equitable theory.

To succeed on an unjust enrichment claim, the plaintiff must establish the following factors: 1) there was a "joint enterprise" between the partners; 2) during the joint enterprise, the parties accumulated assets; 3) the assets were acquired through the efforts and contributions of both parties; and 4) the assets are being retained by one party in an unreasonable amount.¹²

All the above claims are civil claims that can be heard before a jury. In many respects, the legal elements ignore the true nature of the relationship between the couple. Yet, they represent the best remedies currently available to same-sex partners in Wisconsin. Much of the law in this area has developed from cases concerning the dissolution of heterosexual cohabitants' relationships, in which a disadvantaged partner does not have the statutory protections offered by a legal marriage. There is no legal basis for treating same-sex partners differently than opposite-sex partners in these circumstances.

A key distinction between applying these claims to unmarried heterosexual partners and to married same-sex partners is what occurs after the case. The resolution of these legal and equitable claims for unmarried heterosexual partners generally extinguishes these claims in the future because there is no longer a continuing relationship between the former partners that would give rise to an unjust enrichment, quasi-contract, or partition action.

The same is not true for married same-sex couples. These legal and equitable claims do not divorce the same-sex married spouses. The couple remains married in the states that recognize same-sex marriage (or even in Wisconsin if it should ever recognize same-sex marriage). As with any married couple, the rights and obligations under our marital property laws, pursuant to Wis. Stat. chapter 766, could continue to apply to same-sex partners whose marriage has not been legally dissolved even after the resolution of the above legal and equitable claims. Thus, it is important for the attorney to seek an order from the court, or by agreement through a settlement, that resolution of the legal and equitable claims extinguishes any claims arising out of the relationship, whether marital or nonmarital in nature.

In 2009, Wisconsin enacted a domestic partner registry.¹³ Same-sex couples may now register as domestic partners and enjoy 43 rights and privileges generally associated with the status of a spouse. None of those 43 rights include the protections available under the family code statutes. The domestic partnership legislation is silent about how the couple is to divide property, determine maintenance or child support, or allocate placement of any children parented by the domestic partners. The domestic partners will be limited to the same legal and equitable options described above.

Conclusion

The legal rights of gay men and lesbians continue to evolve at a rapid pace. Wisconsin family law attorneys should not only be well versed in all the documents and various legal claims discussed in this article but also must keep abreast of any recent legal developments, in Wisconsin and in other jurisdictions. It is a challenging yet exciting time to be practicing in this area of the law.

The legal options are far from ideal for the gay and lesbian couple that is breaking up. However, it may be just a matter of time before this hodgepodge of remedies become unnecessary. According to a recent Gallup Poll, a slight majority (52 percent) of the total U.S. population is in favor of same-sex marriage.¹⁴ This percentage increases dramatically among respondents between the ages of 18 and 34, 70 percent of whom favor same-sex marriage. Marriage equality and by extension divorce equality seem to be gaining favor.

Endnotes

¹ American Community Service (U.S. Census Bureau 2005); see Gary J. Gates, Same-Sex Couples and the Gay, Lesbian Bisexual Population: New Estimates from the American Community Survey, The Williams Institute (Oct. 2006).

² American Community Service (app. 1), supra.

³ This article uses the term recognition state for states that grant same-sex marriages and nonrecognition state for states that do not grant or recognize same-sex marriages from other jurisdictions.

⁴ Connecticut, Massachusetts, New Hampshire, Iowa, Vermont, New York, and District of Columbia. Washington and Maryland passed legislation granting the right to marry to gay men and lesbians, but these laws have not yet taken effect, and voter referenda may prevent the execution of this legislation.

⁵ Wis. Stat. § 767.001; Wis. Const. art. XIII, § 13. ("Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.")

⁶ Pub. L. No. 104-199, 110 Stat. 2419 (1996). On May 31, 2012, a three-judge panel of the 1st Circuit U.S. Court of Appeals unanimously ruled that the law's provision denying benefits to married gay couples is unconstitutional. Denise Lavoie, DOMA Ruled Unconstitutional by Federal Appeals Court, The Huffington Post (May 31, 2012), www.huffingtonpost.com/2012/05/31/doma-unconstitutional-ruling-appeals-court-boston_n_1559031.html. The matter may go to the U.S. Supreme Court. See id.

⁷ According to the U.S. Census Bureau's statistics on marriage and divorce, there appears to be a correlation between same-sex marriage and divorce rates among the general population. The states that recognize or grant same-sex marriages have lower divorce rates than states that do not recognize or grant same-sex marriages. This seems to counter the argument that recognition of same-sex marriage would weaken the institution of marriage. Danielle Kurtzleben, Divorce Rates Lower in States that Recognize Same-Sex Marriage, U.S. News & World Report (July 6, 2011).

⁸ District of Columbia (Civil Marriage Dissolution Equality Amendment Act of 2011; Vermont (H. 758) (passed on May 1, 2012 and effective July 1, 2012). California also has similar legislation with the same requirement that the couple must have married in California. Since California allowed same-sex marriages for only a limited time, the same-sex divorce legislation has limited impact.

⁹ Most legal scholars and advocates on both sides of the gay marriage debate believe that the Perry v. Brown (formerly, Perry v. Schwarzenegger) case from California is headed to the U.S. Supreme Court for a decision on whether gay men and lesbians have the right to marry. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). On June 5, 2012, a panel of 9th circuit judges voted to deny a petition for rehearing en banc of Perry, filed by the proponents of Proposition 8, the passage of which enacted a gay-marriage-ban amendment to the California Constitution.

¹⁰ All relevant statutes permit these orders based on a judgment of annulment. See Wis. Stat. §§ 767.41 (custody and placement), 767.511(1) (child support), 767.56 (maintenance), 767.61(1) (property division).

¹¹ Wis. Stat. § 767.313(1)(d). This option is only available in the first 10 years of the marriage.

¹² Waage v. Borer, 188 Wis. 2d 324, 525 N.W.2d 96 (Ct. App. 1994) (citing Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987)).

¹³ Wis. Stat. ch. 770.

¹⁴ Gallup Politics, May 20, 2011; www.gallup.com/poll/147662/first-time-majority-americans-favor-legal-gay-marriage.aspx.

Wisconsin Lawyer