Divorce is challenging for any couple, and same-sex couples face specific legal considerations when it comes to dividing assets. This blog will explore the unique aspects of property division in same-sex divorces in Illinois, ensuring that you are informed and prepared.
Table of Contents
- History of Gay Marriage in Illinois
- Post Obergefell: Marriage Rights and Benefits Include:
- Difference Between Civil Union and a Marriage Today
- Divorce Procedures for Same-Sex Couples
- Dividing Property in a Same Sex-Divorce
- 750 ILCS 5/503(d). Disposition of property and debts.
- Length of the Marriage Matters: Unique Challenge of Determining Marriage Length for Same-Sex Couples
- 750 ILCS 5/504. Maintenance.
- Issues With Assisted Reproductive Technology
- Final Thoughts
History of Gay Marriage in Illinois
The legal landscape for same-sex couples in Illinois has evolved significantly. Before 2011, same-sex couples did not have access to the benefits and rights that heterosexual couples enjoyed. In 2011, same-sex couples were able to enter into a civil union. This option remains available today for both gay and straight couples. In 2013, gay marriage was legally recognized when Governor Quinn signed the Religious Freedom and Marriage Fairness Act. However, many states in the US offered no such protections or recognition for same-sex couples who wished to marry.
Before 2015, not all states recognized gay marriage, and many couples had to obtain a “civil union.”
In 2015, the US Supreme Court ruled in Obergefell v. Hodges that the fundamental right of same-sex couples to marry on the same terms and conditions as opposite-sex couples, with all the rights and responsibilities, is protected and guaranteed by the US Constitution.
Post Obergefell: Marriage Rights and Benefits Include:
- Joint filing of taxes and other tax considerations
- Special consideration to spouses of citizens and resident aliens
- Healthcare benefits for private companies or Medicaid
- Family-related rights such as visitation for non-biological children, visiting a spouse in a hospital or prison, next of kin status for medical decisions or wrongful death claims
- Military and federal civil service benefits and privileges
Difference Between Civil Union and a Marriage Today
Today, there is hardly any difference between a civil union and a marriage. After the Obergefell decision in 2015, civil unions have become less popular.
The biggest difference is that the federal government does not recognize civil unions. So, couples in civil unions cannot file as “married” with the IRS, apply for citizenship for one another with Immigration Services, or take advantage of any other federal benefits. Additionally, 16 and 17 year olds cannot enter into civil unions, even with their parents’ consent.
Divorce Procedures for Same-Sex Couples
Same-Sex divorces have the same legal divorce procedures as opposite-sex couples. It’s a common misconception that dissolving a civil union is easier than dissolving a marriage. In fact, the process is nearly identical.
Marriage and parenting are topics governed by state laws, not federal laws. So, each state has different rules about property division, parental rights, and the divorce process as a whole. These state laws are applied equally to heterosexual marriages and to parents of all genders. In Illinois, both civil unions and marriages are dissolved under the Marriage and Dissolution of Marriage Act (IMDMA).
Dividing Property in a Same Sex-Divorce
In Illinois, judges can use the principle of equitable distribution to determine which spouse should get which properties in a divorce. This means that a judge doesn’t have to strictly follow a 50/50 rule to split assets. A judge in Illinois can consider a list of factors to ensure the spouses get property and assets in an equitable, not necessarily equal, manner. The list of factors that a judge can consider is detailed in Illinois law.
750 ILCS 5/503(d). Disposition of property and debts.
In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) each party’s contribution to the acquisition, preservation, or increase or decrease in value of the property;
(2) the dissipation by each party of the marital property;
(3) the value of the property assigned to each spouse;
(4) the duration of the marriage;
(5) the relevant economic circumstances of each spouse when the division of property is to become effective;
(6) any obligations and rights arising from a prior marriage of either party;
(7) any prenuptial or postnuptial agreement of the parties;
(8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(9) the custodial provisions for any children;
(10) whether the apportionment is in lieu of or in addition to maintenance;
(11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(12) the tax consequences of the property division.
Length of the Marriage Matters: Unique Challenge of Determining Marriage Length for Same-Sex Couples
Gay marriage in Illinois has been recognized for only about 11 years. But what if two people in a same-sex marriage have been together for longer? What if they considered themselves married long before Illinois law did?
The length of a marriage is key in any divorce as it impacts property division. Also, the duration of the marriage has the biggest effect on spousal maintenance (aka alimony). For same-sex couples, this can be particularly complex due to the discrepancy between the actual relationship length and the legal marriage duration.
For instance, if a couple has been together for 20 years but only legally married for 5, determining what counts as marital property can be contentious. Courts in Illinois generally consider the legal start date of the marriage for property division, but judges can also take the long-term nature of the relationship into account when making decisions about asset division and debts. This includes real estate and retirement accounts. Knowing the legal start date of the marriage will help determine which properties and percentages of retirement accounts should be shared and which belong solely to one spouse.
The duration of the marriage also has the biggest effect on spousal maintenance (formerly called alimony). It’s rare for the length of a marriage to be in dispute, but if there is no agreement between the two people in the marriage, a judge can deviate from the standard factors for maintenance in the Illinois statute to award maintenance as they deem appropriate.
750 ILCS 5/504. Maintenance.
(b)(2) if the court deviates from applicable guidelines under paragraph (1) of subsection (b-1), it shall state in its findings the amount of maintenance (if determinable) or duration that would have been required under the guidelines and the reasoning for any variance from the guidelines.
Issues With Assisted Reproductive Technology
One other unique problem that LGBTQ+ couples can encounter is that of assisted reproductive technology. It is common for many LGBTQ+ couples to seek out the help of fertility clinics to complete their family.
In the event of a divorce, a couple may dispute about the fertilized eggs or frozen embryos. The dispute may be over who has the right to keep them as their sole and separate property, or the dispute may be over parental rights. In either scenario, the separating couple should turn to their contract with the fertility clinic.
Typically, language in the fertility clinic’s initial contract will determine what will happen to the embryos. A divorce lawyer may need the couple to sign a waiver to obtain a copy of the contract, as it is a medical document with legal consequences. If the divorcing couple would like to deviate from their contract with the clinic, they can negotiate the terms of the frozen embryos and any parental rights with a divorce lawyer.
Final Thoughts
Dividing assets in same-sex divorces involves unique challenges, largely due to the evolving legal recognition of these marriages. Understanding these nuances and seeking expert legal advice can help ensure a fair outcome. For personalized assistance with your same-sex divorce, contact Anderson Boback & Marshall today to schedule a consultation.
