Wisconsin law recognizes the rights of lesbian, gay, bisexual, transgender, and queer members in the family law context. According to Wisconsin State Statute 765.01, Same-sex couples may exercise the fundamental right to marry in all states. The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the 14th Amendment couples of the same-sex may not be deprived of that right and that liberty (Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015)).
The lawyers at Divergent Family Law help same-sex couples navigate the Wisconsin divorce legal system so they can win the best possible outcome for their families. Divorce can get messy, so it’s important to hire an experienced family law attorney that knows what it takes to “win” a divorce case. Our same-sex divorce lawyers help Wisconsin couples with a collection of legal issues, including:
The child custody laws outlined in Wisconsin State statute say same-sex child custody laws are the same as different-sex child custody laws. The rights appointed to same-sex couples are the same as those given to different-sex couples. The decision made by the court when deciding child custody terms for same-sex couples will always be in the best interest of the child. When both parents in a same-sex relationship are equally responsible/capable of supporting the child, the court will usually split child custody evenly between the two parents.
A child adopted by same-sex parents in Wisconsin is treated the same way a biological child would during a divorce. Child custody will be determined by the Wisconsin court system. The decision of the court will be based on what’s best for the child and their future. Ideally, the adopted child’s time is split between the two parents. If one parent is not capable/is unwilling to take care of the child, the court may decide the child is better off with one parent over the other.
Some same-sex couples will decide to use a surrogate to have a child instead of adoption. If the child is already born, the legal child custody process will proceed like any other child custody manner in Wisconsin. However, it’s important to refer to the legal surrogacy agreement terms that were originally outlined. Surrogacy contracts are enforceable in the state of Wisconsin as of 2013. Unless there were any pre-decided child custody terms decided on within a surrogacy legal agreement, the case will be treated the same as any other child custody case in court.
In cases where you or your partner had a child before getting married and the other spouse didn’t legally adopt the child during the marriage, it’s possible that the non-adopting parent may not have any legal entitlement to custody or visitation rights.
Here are scenarios where only one parent might hold legal parental status:
Our LGBTQ+ lawyers at Divergent have the knowledge of Wisconsin family law to help you understand your rights and protect your interests. Our expertise extends to a wide range of divorce matters, including high-asset divorces, same-sex divorces, and other intricate divorce scenarios. Our objective is to guarantee that your plan safeguards all your concerns, including the equitable distribution of assets and properties, handling of debts, addressing child custody and support matters, and addressing any ongoing spousal maintenance requirements.
Same-sex marriage has been legally recognized in Wisconsin, since 2014, when the Seventh Circuit ruled in Wolf v. Walker that the state’s ban on “gay marriage” was unconstitutional.
Shortly thereafter, in June 2015, the Supreme Court’s ruling in Obergefell v. Hodges guaranteed the rights of two consenting adults of the same sex to marry in all states. As such, same-sex marriages are now recognized as legal throughout the entire United States, and married couples are afforded the same rights, benefits, and responsibilities, regardless of gender or sexual preference.
Yes—same-sex couples may undergo the same legal processes related to marriage as opposite-sex couples, including divorce. However, due to the lengthy and piecemeal adoption of same-sex marriage in the United States, there are some ambiguities related to a few of these processes, which an experienced family law attorney can help you to navigate.
For example, in instances where a marriage took place prior to Wisconsin legally recognizing same-sex marriage, there is currently ambiguity as to whether the start date of the marriage will be recognized as the actual marriage date or the date at which Wisconsin recognized the legality of the marriage. This could impact decisions, such as spousal maintenance, that are at least in part tied to the length of the marriage.
According to the Wisconsin Department of Health Services, Wisconsin’s divorce rate is right around 2.1 per 1,000. According to a study conducted by the UCLA School of Law Williams Institute, “same-sex couples end their marriages at a rate of 1.1% annually”. The divorce rate of same-sex marriages was recorded as being slightly less than the annual divorce rate of different-sex couples.
The experienced divorce attorneys at Divergent Family Law are experienced in helping Wisconsin couples smoothly navigate the legal divorce process. If you’re involved in a same-sex marriage you want to get out of or were served papers, contact our Wisconsin divorce attorneys. We offer free divorce case consultations. We will go through the details of your case and discuss the possible outcomes and plans to help you throughout the process. If you decide to work with us, we will get started on your defense right away. It’s our goal to make sure your divorce is handled and the outcome is fair for you and your family.
Our divorce attorneys provide family law legal services for clients all throughout the state of Wisconsin. We serve clients from our 8 law firms located in:
References: Custody and Physical Placement. Wisconsin Statute 767.41 (2025) | Marriages and Divorces. Wisconsin Department of Health Services (2025) | Patterns of Relationship Recognition for Same-Sex Couples. School of Law Williams Institute UCLA (2025)
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