Since 2014, same-sex marriage has been legal in the United States. This means that the legal process for divorce is the same for LGBTQ couples as it is for everybody. Although the legal process is the same, there can often be challenges in a same-sex divorce in Illinois that are not present in divorces in Illinois involving a heterosexual couple.
Challenges of Same-sex divorce in Illinois:
One of the most common challenges of same-sex divorce in Illinois is that the length of a marriage in Illinois matters in a divorce. What I mean by that is, if you have been with your partner for 20 years, got married in 2014 (when same-sex marriage became legal) then got divorced in 2020, your marriage would be considered to have lasted 6 years, although there were 14 years before that when you were living as a couple and wished to get married far earlier.
In any divorce, the length of time a couple is legally married impacts many things, including but not limited to, the division of the parties’ assets and finances, such as real estate, retirement assets, and maintenance payments, to name a few. Illinois is an equitable distribution state. That means the division of marital assets are to be divided upon the couple (including LGBTQ couples) equitably. It doesn’t necessarily mean a 50/50 split, but most Judge’s divide the assets equally 50/50 unless there are reasons to deviate or reasons under the law to award an disproportionate awards of the a marital state to one party.
So if you were legally married was 6 years, the courts could deem that it was a short marriage and not distribute the assets equitably 50/50. However, as the years pass, this will most likely become less and less of an issue.
Another challenge of same-sex divorce in Illinois is the division of parental responsibilities. There are many LGBTQ couples who have children who are biologically related to only one of them or who is adopted by one of the individuals in a marriage but not the other. This can cause complications when deciding parental responsibilities, including parenting time, decision making, child support, and contribution to child related expenses.
Another common situation arises when a LGBTQ couple lived together in a home that only one of the individuals owned prior to the marriage. Then, upon marriage, the LGBTQ couple continue to reside in the home (as they have been doing) with both individuals contributing to the mortgage, real estate taxes etc. for the property.
When the same-sex couple then proceeds forward with a divorce, what is the individual that doesn’t own the property but has been paying for it entitled to? The law recognizes that the property was purchased prior to the marriage, so the non-owning spouse is not entitled to the property per say. However, the payment of the mortgagehas been paid with marital funds (i.e. money that was earned or accumulated during the couple’s marriage) and has been used to pay down the other individual’s non-marital asset. The individual who doesn’t own the property can ask the Court to have the increase in the value of the property be deemed marital property, to have the payments made be deemed marital and added to the total of the marital estate etc.
Aside from the financial aspects of a LGBTQ divorce, child related issues also often arise. One of the individuals in the marriage may find themselves at somewhat of a loss when it comes to being entitled to parenting time. Or, the parent who has rights over the child may lack the ability to collect child support from the parent who does not legally have any rights to the child.
The same problem presents for an LGBTQ couple that decided to use in-vitro fertilization before same-sex marriage was legalized, and the child is biologically related to one of the parents but not the other. When a same-sex divorce in Illinois occurs, is the non-biologically related parents entitled to parenting time? Is the biological parent entitled to child support? A lot of these questions haven’t been fully answered by the Court, and is currently being determined on a case-by-case basis until the higher courts in Illinois provide guidance on the same.
In most instances, the divorce process will be very similar for a same-sex couple as it is for a heterosexual couple. However, it is worth keeping in mind these are common challenges that LGBTQ couples face when getting a same-sex divorce in Illinois. It is important to speak with an attorney who has experience working with LGBTQ clients.
I would love to offer you a complimentary consultation, either by phone, Zoom or in-person if you are an LGBTQ couple or individual considering divorce. I’ve been a divorce attorney for over 10 years. I know Illinois divorce law, I’m very active in the LGBTQ community, and I know how to fight for what is right, what is fair and equitable, and what is best for the children. I’m here to help you in any way that I can.
Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Awarded as a Top 100 in Lawyers Magazine in 2018 and 2019, Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.
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