Category: LGBTQ
11.29.24
Category: LGBTQ
Written by Olivia St. Clair Long on 11.24.24
Family law has traditionally been a state matter, allowing states to independently govern issues like marriage, divorce, and child custody. However, federal actions and Supreme Court decisions occasionally reshape the landscape, which can lead to profound implications for families nationwide. After the 2024 election, Illinois families may face new challenges related to same-sex marriage, parental rights, and no-fault divorce. Here’s how these potential changes could play out.
Family law in the United States is predominantly a state issue. Matters like marriage, divorce, and child custody have historically been legislated at the state level, allowing each state to tailor laws to its citizens. Despite this state-centric approach, federal law has occasionally intersected with family law. One of the most notable examples is the Defense of Marriage Act (DOMA), enacted in 1996. DOMA allowed states to refuse recognition of same-sex marriages from other states and denied federal benefits, such as military benefits or filing taxes jointly, to same-sex married couples.
In United States v. Windsor (2013), the Supreme Court invalidated Section 3 of DOMA, granting same-sex couples access to federal benefits. This decision marked a turning point, but it also highlighted how federal intervention can reshape family law, for better or worse.
In 2015, the Supreme Court’s landmark decision in Obergefell v. Hodges required all states to recognize and solemnize same-sex marriages, ensuring nationwide equality for same-sex couples. This ruling provided same-sex couples with access to the same rights and benefits as opposite-sex couples, regardless of where they resided.
However, the current Supreme Court has indicated a willingness to revisit established precedents, raising the possibility of overturning Obergefell. If this occurs, Illinois families could face significant legal uncertainties, particularly concerning federal benefits and the recognition of same-sex marriages across state lines.
Should Obergefell be overturned, the recognition of same-sex marriages would revert to a state-by-state decision. Illinois, which has strong legal protections for same-sex couples, would likely continue to uphold marriage equality. However, couples could encounter challenges when traveling to or relocating to states that choose not to recognize their marriage. Additionally, Congress could enact legislation similar to the Defense of Marriage Act (DOMA), denying federal recognition and benefits—such as Social Security, tax advantages, and military spousal benefits—to same-sex marriages in states that do not recognize them.
The stakes are even higher for same-sex couples with children. In Illinois, children born to married couples, including same-sex couples, are presumed to be the legal children of both parents. However, without federal or nationwide protections, the dissolution or non-recognition of marriage in certain states could jeopardize these parental rights. Many same-sex couples may need to pursue second-parent adoptions to establish their parental relationship with their children legally. This process ensures that the legal bond between parent and child remains intact, even if the marriage is no longer legally recognized.
The potential rollback of Obergefell underscores the importance of proactive legal planning for same-sex couples and their families.
In 2016, Illinois adopted no-fault divorce allowing couples to dissolve their marriage without proving fault such as adultery, abuse, or abandonment. By eliminating the need for fault-based accusations, no-fault divorce streamlined the divorce process and minimized conflict, making it easier for couples to separate with dignity and focus on co-parenting or resolving other important issues.
However, conservative movements in some states have begun advocating for the elimination of no-fault divorce, arguing that it weakens the institution of marriage. Proponents of these efforts argue that requiring fault-based grounds for divorce would encourage couples to work harder to preserve their marriages. Critics, however, warn that such changes could trap individuals in unhappy or abusive relationships and increase the legal and emotional burden of ending a marriage.
Illinois has shown no signs of reversing its no-fault divorce policy, given the state’s progressive stance on family law issues. However, national debates and potential policy shifts in other states could still impact Illinois residents. For example, if a couple married in another state moves to Illinois, differing divorce laws could complicate their case. Similarly, interstate custody disputes may become more challenging if one parent resides in a state that reinstates fault-based divorce requirements.
Potential changes to family law after the 2024 election highlight the need for proactive legal planning. While Illinois has been a leader in progressive family law policies, evolving federal laws and national debates could create new challenges for families. Here’s what Illinois residents should keep in mind:
1. Marriage Equality: Same-sex couples may face significant hurdles if federal benefits become tied to state recognition of marriages or if some states stop recognizing same-sex unions altogether. These changes could affect everything from tax filing to Social Security benefits.
2. Parental Rights: Same-sex parents may need to consider second-parent adoptions to ensure legal recognition of their parent-child relationships, regardless of marital status or state laws. This step ensures parental rights remain intact, even if marriage laws change or vary across state lines.
3. Divorce Accessibility: While Illinois is likely to maintain its no-fault divorce laws, shifts in other states could impact interstate family law issues. Families facing custody disputes or other issues involving out-of-state parties may encounter additional legal complexities.
Illinois has long been a leader in progressive family law policies, but we have seen how federal and national shifts could introduce new challenges. From the potential rollback of same-sex marriage protections to debates over no-fault divorce, the legal landscape is evolving. O. Long Law, LLC is committed to helping Illinois families navigate these uncertainties with confidence. Contact us today to discuss how we can help you safeguard your rights and secure your family’s future in an ever-changing legal environment.