Unique Challenges in Same-Sex Relationships in Illinois

As society progresses, our laws tend to follow suit.  However,  laws tend to play “catch-up” to public opinion and societal realities. As such, even in states where same-sex marriage is legal, like Illinois—which recognized such unions in 2014—same-sex couples continue to face unique legal challenges. This blog explores the unique challenges in same-sex divorces, focusing on Illinois where the legal landscape continues to evolve.

In 2014, Illinois became the 16^th state to recognize same-sex marriage. Since then, Illinois has made strides in LGBTQ+ rights, yet several legal issues pertinent to same-sex couples’ divorce still remain. These issues include legal parentage and custody disputes to the recognition of marriage duration.

Navigating Legal Parentage in Same-Sex Divorces

A major challenge for same-sex couples is establishing legal parentage, particularly for children conceived through assisted reproductive means. Although Illinois Family Law acknowledges both spouses in a same-sex marriage as legal parents, unmarried couples or those who conceived before marriage may face complications.

Pre-Marriage Parentage: Establishing Parentage Challenges

Couples who conceived a child through assisted reproductive methods, such as in-vitro fertilization, before marriage may find themselves in a legal gray area regarding parentage. In such a case, it is crucial to establish legal parentage through adoption or a parentage order, which can proactively resolve any disputes regarding parentage.

Unmarried Same-Sex Couples Parentage

Under Illinois law, both partners in a same-sex relationship can be recognized as legal parents, though this requires additional steps. It’s crucial to establish parentage through a Voluntary Acknowledgment or court order, especially if one parent is the non-biological parent.

Custody Disputes Among Same-Sex Couples

Like any couple, same-sex couples may face custody disputes in the event of legal separation or divorce.  These confrontations can be particularly complex due to varying recognitions of legal parentage, which might not always be straightforward for non-biological parents. Understanding the legal nuances and protections in Illinois can be crucial for navigating these challenges effectively.

Best Interest of the Child

Illinois courts prioritize the best interest of the child in custody disputes, considering the child’s best interest factors such as the child’s relationship with each parent, the child’s adjustment to the home, school, and community, and the mental and physical health of all involved.

Legal Parentage v. Biological Connection

In cases where one parent lacks a biological connection to the child, disputes may arise concerning visitation rights and custody. However, Illinois law tends to emphasize legal parentage over biological connection, ensuring that both spouses in a same-sex marriage are treated equally regarding custody matters.

Example: In In re T.P.S., 2012 IL App (5^th) 120176, two women agreed to have children conceived through artificial insemination. Only one partner was biologically related to the children. At all times the parties were together, both before and after the births of their children, the biological parent agreed that the non-biological parent was to have legal parental rights to the children that were equal to hers. When the relationship ended, the biological parent sought to cut off the rights of the non-biological parent. The court ultimately held that in this case, although the parent was not biologically related to the children, she was nonetheless intimately involved in the planning and arrangement for the procreation of these children, and cared for them as a parent under an express agreement with the biological mother. The court held that “the best interests of children and society are served by recognizing the parental rights may be asserted based on conduct evincing actual consent to artificial insemination by an unmarried couple along with active participation by a non-biological parent as a co-parent.”

Specifically, the common law recognizes actions for child custody and visitation where an unmarried couple agrees to conceive a child by artificial insemination and the couple subsequently begins raising the child as coequal parents. Such actions are consistent with the public policy in Illinois, which recognizes “the right of every child to the physical, mental, emotional, and monetary support of his or her parents, regardless of the legal relationship of the parents.” See 750 ILCS 46/102 (West 2020); In re T.P.S.¸2012 IL App (5th) 120176, ¶¶ 30-32.

Complexities of Recognizing Relationship Duration

For same-sex couples who face legal restrictions on marriage, recognition of the duration of their relationship can pose unique challenges.

Legal Implications of Relationship Duration Recognition | Delayed Marriage

Before the legalization of same-sex marriage, many couples faced years or even decades together without legal recognition, while their heterosexual counterparts faced no such difficulty. When same-sex marriage became legal in Illinois in 2014, some couples had already been together for years in a relationship equivalent to a marriage. Illinois law, however, does not currently provide mechanisms to recognize the duration of relationships before marriage. As such, those in same-sex relationships face the same standard as those in heterosexual marriages: the duration of the marriage begins at the point of the legal marriage.

Impact on Legal Rights

While the lack of recognition for pre-marriage relationships may not affect custody or parentage directly, it can impact issues such as property division, spousal support, and inheritance rights.

Takeaways: Protecting Your Legal Rights and Family Security

While Illinois has made significant strides in LGBTQ+ rights, especially in comparison to other states across the country, legal challenges persist for same-sex couples, especially regarding parentage, custody, and recognition of marriage duration. As such, it is crucial for same-sex couples to understand their legal rights and to take proactive steps to protect their families.

By establishing legal parentage through adoption or parentage orders, same-sex couples can ensure that both partners have equal rights and responsibilities regarding their children. In the event of separation, understanding custody laws and prioritizing the best interest of the child can help resolve disputes amicably.

Moreover, same-sex couples should consider legal agreements to address issues arising from the delayed recognition of their relationships, such as property division and inheritance rights. While the legal landscape may present challenges, same-sex couples in Illinois can navigate them successfully with the right knowledge and legal support. Ultimately, by advocating for their rights and seeking legal recognition, same-sex couples and their allies contribute to the ongoing progress toward equality and justice for all families.

Get in Touch if You Need to  Review Your Situation With Attorney

If you or someone you know is navigating the complexities of a same-sex divorce, don’t face these challenges alone. Contact Anderson Boback & Marshall to schedule a consultation with our experienced family law attorneys. Let us help you protect your rights and secure your future. Call us now or fill out our online form to get started.