Illinois Now Has Same Sex Marriage. Will the New Law Impact Our Divorce Statute?

2 bridesIn Illinois, our divorce statute is the Illinois Marriage and Dissolution of Marriage Act.  Will the new law change any part of how Illinois handles divorces?

Illinois passed the Civil Union Act, which allowed for all the privileges and obligations of a marriage, you just weren’t allowed to call it a marriage.  With the passage of the new Act, the legislature has cured the first problem by extending the right to marry to all, regardless of gender.

But what if you have a Civil Union already?  And you want to get married?  The Act enables same-sex couples to marry and recognizes same-sex marriages celebrated here and elsewhere as equal to all marriages under all of Illinois law.  It does not repeal the Civil Union Act, nor does the new law require a couple to automatically convert their civil union to a marriage.  The law does provide that you can however.  The conversion is an affirmative act however, and is not automatic.  You only need to apply.

One important distinction for families, is that the Act formally equates parties to same-sex marriages and their children with parties to opposite-sex marriages under Illinois law.  This is key, since many families were unable to take the same benefits as their heterosexual counterparts.

The Statute itself will be modified as well.  There will be revisions to revise gender.  No longer will it refer to “husband and wife,” but instead we’ll see language such as “spouses.”  The Solemnization and Registration section will be modified to replace specific pronouns, and areas in the statute will also be replaced with the word “siblings” instead of brother and sister.

What still remains uncertain however, is how these married couples will be treated by a state that does not recognize same sex marriages.  Under Illinois law, a child born to the parties during their marriage belongs to both parents.  There is no need to have a court order stating that both parents have rights to the child.  But how will that play out in a state that doesn’t recognize the marriage?  Depending on where you are set to travel, it might be added insurance to have a court order stating that both parents are the parents of the child.


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