When Wisconsin formally permitted and recognized same-sex marriages within the state in October of 2014, many hailed the change as a recognition that all Wisconsin citizens are now entitled to equal protection under the law. Some have pointed out, however, that while all Wisconsin couples now enjoy the fundamental right to marry, another class of Wisconsin citizens may have lost a critical right: Wisconsin children. Due to Wisconsin’s history of prohibiting same-sex couples from jointly adopting children, children of married, same-sex parents may not have the same right to child support as do children of opposite sex parents in the event of divorce.
At the offices of MacGillis Wiemer LLC, our team of dedicated Milwaukee child support attorneys have more than two decades of combined trial experience fighting on behalf of children to win the child support to which they are entitled under law. With so much Wisconsin family law in flux in the wake of state recognition of same-sex marriage, we are committed to staying on top of each new legal development as it is handed down, allowing us to provide thorough and tenacious advocacy of your rights.
Divorcing Wisconsin spouses are permitted to reach agreements on many of the issues which must be settled before a divorce can be granted. Agreements on matters such as property division, property valuation, and even child placement can be amicably negotiated by the couple and submitted to a family judge for approval. Child support, however is another matter entirely.
The state of Wisconsin uses a set formula to determine the amount of child support a parent must provide. This formula is primarily based upon:
Once the formula has been applied to each parent’s circumstances, the parent with the high obligation pays it to the other parent.
Again—Child support is the right of the child, and not the parent. Wisconsin parents are never permitted to waive receipt of child support payments on behalf of their child, and failure to pay child support can result in liens, suspension of state-issued licenses, and seizure of assets and income.
For years, Wisconsin law provided—in gender-specific terms—that a husband in a traditional marriage was the legal parent of any child born to his wife during the marriage, and any child conceived during the marriage, even if he was not the biological father. In addition, step-parents in traditional marriages were permitted to adopt their spouse’s children from previous marriages or relationships, and married couples were permitted to jointly adopt children.
Besides being prohibited from marrying, same-sex couples in Wisconsin were not entitled to similar recognition of legal parenthood. Wisconsin’s domestic partner registry included no parenting rights, and while members of the LGBT community were permitted to adopt children as individuals, joint adoptions by same-sex couples were prohibited. Same-sex step-parents were also prohibited from adopting their spouse’s children from a previous relationship.
While couples in same-sex marriages now share identical adoptive rights under Wisconsin law as do opposite-sex couples, there is not yet any automatic recognition of legal parenthood for “de facto” parents in same-sex marriages. Prior to October of 2014, many same-sex step-parents resorted to the state’s legal guardianship provisions to establish a legal relationship with their children. A legal guardianship, however, falls far short of legal parent status.
Absent legal parenting status, a spouse in a same-sex divorce can be prevented from seeking any visitation or custody rights; conversely, children of same-sex divorce can be denied the financial support from that spouse that is their right—an unacceptable outcome destined to be addressed both judicially and legislatively.
At the law offices of MacGillis Wiemer LLC, our experienced Milwaukee child support attorneys understand that no two divorces are alike. We are committed to helping families at all stages of the divorce, child custody and child support process, and stand ready to help you and your family today. If you are seeking a same-sex divorce and are concerned about how your children’s rights may be affected, we encourage you to contact us at our Wauwatosa office today at (414) 727-5150, or contact us online.
Milwaukee – 414-727-5150
Hartford – 262-457-9192
Address: 11040 W Bluemound Rd #100, Wauwatosa, WI 53226