Same-sex marriage has been legal in Wisconsin since June 2014, when federal district court for the Western District of Wisconsin ruled (in Wolf v. Walker) that the ban on such marriages violated the Equal Protection guarantees of the U.S. Constitution. Although the ruling was followed by uncertainty about whether it would stand on appeal, that was finally put to rest on October 6, when the U.S. Supreme Court denied certiorari on appeals by several state attorneys general (including Wisconsin’s own AG) seeking to overturn federal court decisions allowing same-sex marriage. By denying “cert”, the legal controversy over same-sex marriage effectively ended. Now, Wisconsin county clerks are issuing marriage licenses to gay and lesbian couples, and Wisconsin courts also perform divorces for gay and lesbian couples, including those who were married in other jurisdictions before the changes in Wisconsin law.
In Minnesota, same-sex marriage has been legal by statute since July 2013, and Minnesota courts also hear same-sex divorce cases.
The handling of divorce cases for gay and lesbian couples is no different under the law than for heterosexual couples. However, in many cases there are likely to be practical differences that affect the divorce proceedings in important ways. First, if there are any children of the marriage who are not the legal children of both spouses, there may be significant issues when it comes to the custody, placement and support of those children. A spouse who has developed a parental relationship with a children but is not the legal parent of that child will probably reply on a different and more limited set of statutory custodial rights than a legal parent. As in most cases, it is best for spouses who have acted as parents during the marriage to attempt to resolve their differences out of court, often with the assistance of attorneys, counselors, and/or a guardian ad litem.
There may also be issues where a divorce is taking place following a long separation. The couple may have been separated for a long period but simply never obtained a divorce because their home state (Wisconsin before 2014, or Minnesota before 2013) did not recognize the marriage. This invites courts to view the cases differently when it comes to property division and maintenance; however this requires case-by-case consideration.
Gay and lesbian married couples can take step before or during marriage, in order to secure their rights in the marriage and avoid conflict later on. A positive step is that adoptions, powers of attorney, and other legal procedures are no longer necessary as workarounds to compensate for the lack of legal same-sex marriage. However, adoption of non-joint children (where feasible) can place spouses on equal footing for custodial and support purposes in the event of separation or divorce, and, prenuptial or postnuptial agreements regarding the treatment of property and debt can clarify agreements and expectations on both sides.