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Category: Family Law

Unique Elements of Same-Sex Divorce in Illinois

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Written by Jessica Mansbacher Kibbe on 2.28.24

The landscape of family law in Illinois has evolved significantly over the years, and same-sex couples now navigate a legal terrain that presents unique challenges and considerations. There are a few key aspects that set same-sex divorces in Illinois apart, while in many ways, they follow the same trajectory as all other divorces in the state. If you are considering divorce, reach out to an experienced Chicago divorce attorney today for help.

History of Same-Sex Marriage in Illinois

the passage of the Religious Freedom of Marriage Act in Illinois in 2013 marked a significant step forward by granting same-sex couples the right to marry in the state. This was followed by the landmark Supreme Court decision in Obergefell v. Hodges in 2015, which extended the right to marry to same-sex couples nationwide, ensuring equality in marriage laws across all 50 states.

In theory, a same-sex marriage is treated exactly like any other marriage in Illinois. The Religious Freedom and Marriage Fairness Act states:

“(a)All laws of this State applicable to marriage, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil or criminal law, shall apply equally to marriages of same-sex and different-sex couples and their children.
(b) Parties to a marriage and their children, regardless of whether the marriage consists of a same-sex or different-sex couple, shall have all the same benefits, protections, and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil or criminal law.” 750 ILCS 80/10

In practice, however, same-sex couples still encounter unique hurdles when it comes to divorce in Illinois.

Property Division

One such challenge arises from the fact that many same-sex couples existed long before 2013, and have accumulated assets and property together before they could legally marry. This property may not be considered marital property subject to division under Illinois law in the event of divorce. This distinction can complicate the divorce process for same-sex couples, requiring careful consideration and experienced legal counsel to navigate.

Child Custody and Support

In Illinois, the court places paramount importance on the best interests of the child, irrespective of the sexual orientation of the parents. The legal system wants to provide children with the opportunity to maintain meaningful relationships with both parents, and it does not care what the gender identities or sexual orientations of those parents are.

However, parties to same-sex marriages may encounter challenges when trying to establish and enforce their parental rights.

When two women have a child in Illinois, and one woman gives birth to the child, the parentage of the birthing woman is recognized under the law. However, determining the status of the non-birthing woman becomes essential. According to 750 ILCS 46/204, if two women are married and one gives birth, the non-birthing spouse is automatically considered a parent due to their marital status.

In case of a divorce, however, the birth mother might contest the parental rights of the non-birthing spouse by claiming lack of biological relation. There is a time limit for such an action, however; Under 750 ILCS 46/205(a), any action to challenge the parent-child relationship must be initiated within two years of the relevant facts becoming known or it will be barred.

In cases involving two male parents, the process may involve a surrogate birth mother who relinquishes her parental rights in a written a contract beforehand, leading to one or both parents being recognized as intended parents under 750 ILCS 46/703. Either or both parents can seek a Court Order confirming their parental rights, as well.

No matter the makeup of a family, same-sex parents in Illinois may want to take extra precautions to solidify their parental rights. In some cases, a non-biological parent may choose to formally adopt their children. Adoption ensures full parental rights, no matter what the future brings, and can simplify matters down the road should the marriage end in divorce.

Reach out to an Experienced Same-Sex Divorce Attorney in Chicago

Divorce is rarely simple or easy. If you have questions about pursuing a same-sex divorce in Illinois, reach out to a skilled legal professional who can answer your questions and set you on the right path. The compassionate and experienced attorneys of O. Long Law, LLC, are here to help. Contact us today to schedule your consultation.

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