Same-sex divorce in Oakbrook Terrace, IL, brings the same nuances that occur in opposite-sex divorces. However, additional considerations may apply in some same-sex splits. For example, parental rights might be an issue. Another common issue is spousal support amount and duration if the partners were together before they could be legally married. A third common consideration is assets the partners had before they could get married. These assets could be separate property in some cases, even if their purpose was to benefit the couple.
Erlich Law Office can help with same sex divorce issues, including parental rights, spousal support, and property division. Give us a call at (630) 538-5331.
Legal Recognition of Same-Sex Marriage and Divorce in Illinois
In DuPage County, about 91.3% of coupled households are opposite-sex. In other words, about 8.7% of households in the county are headed by same-sex couples.
Legal recognition of such households is relatively new, as Illinois same-sex marriage became legal in June 2014. In June 2015, the U.S. Supreme Court struck down existing bans on same-sex marriages in the states that did not allow it.
Married Illinois same-sex couples have the same legal rights and go through the same divorce processes as their opposite-sex counterparts. For instance, they can reap the same benefits of an uncontested divorce that opposite-sex couples do. This includes saving stress, time, and money, and setting the stage for a more cooperative co-parenting relationship.
An extra benefit is the degree of customization to address nuances such as living as married for years before being able to marry. This is because couples who were together before same-sex marriage became legal may face a more complicated path in their divorce, especially with parenting, asset division, and spousal support issues.
Same-sex couples who got together and married after June 2014 should have a clearer path in their divorce. However, nuances can still apply. One wrinkle relates to same sex parental rights, especially if one party is not a child’s legal or biological parent.
Custody and Parenting Plans for Same-Sex Couples
For all married couples, the Illinois Marriage and Dissolution of Marriage Act covers custody, visitation, and parenting responsibilities. Same sex parental rights in Illinois are the same as opposite-sex rights. However, same-sex couples may have to navigate additional hurdles to obtain these rights. For example, one parent may need to adopt the other’s biological child to have the same legal rights the biological parent does. Alternatively, both parties may adopt a child together. In these cases, both of the parents should have the same legal rights from the beginning and be on equal footing.
Here are a few key things to keep in mind when considering same-sex parenting agreements:
- Parentage: Illinois often recognizes both partners in a same-sex couple as legal parents. This commonly occurs through adoption of some kind, assisted reproductive technology, and other methods.
- Allocation of Parental Responsibilities: Illinois technically no longer uses “custody” and “visitation.” Rather, it uses “allocation of parental responsibilities” to determine decision-making authority and parenting time. The court focuses on the best interests of the child when deciding such matters.
- Parenting Plans: Both same-sex and opposite-sex parents must create parenting plans that lay out details such as how they will share their parental responsibilities and time. Plans cover a schedule for when the child is with each parent, schedules for school breaks, holidays, and vacations, and who has decision-making authority in areas such as education, health care, and religion.
The court should not give default or automatic preference to a biological parent just on a genetic basis if both parents have legal rights. If one parent lacks legal rights, it may be possible for that parent to get some legal recognition or custody, for example, if the parent is heavily involved in the children’s lives.
Same-sex parents have the same types of parenting options available to them that opposite-sex couples do. Joint custody arrangements are common, in which both parents share decision-making authority and time with the child. If the parents cannot do this, parallel parenting in Illinois may be an option. It allows the parents to have no interaction with each other, or as little interaction as possible.
Resolving Disputes in Same-Sex Divorce and Custody Cases
Same-sex parents may not agree on divorce or parenting issues. The court may require them to attend mediation, or they can choose to do so on their own.
It can be helpful to try mediation before filing for divorce. The divorce process may go more smoothly, and the parties can choose their own mediator. If the court orders mediation, there may be no choice in whom the mediator is. This person could be new to the process and unfamiliar with same sex divorce issues. If mediation does not work, the court will make decisions on the issues at hand.
Court decisions on same-sex issues may be unsatisfactory. For example, a judge may be legally unable to or unwilling to accept nuances in a long-term partnership. Mediation and the customization it allows can be valuable in same sex divorce cases.
It is important to pick a lawyer who specializes in family law and who has experience with LGBTQ+ and same-sex clients. Uncontested divorces are usually better for everyone and involve the least strain. They are not appropriate in all situations, though, such as those involving abuse, manipulation, domestic violence, or power disparities.
Spousal Support for Same Sex Divorces in Oakbrook Terrace, IL
How long a couple has been married matters for several reasons in Illinois. Longer marriages call for more spousal support and higher amounts, compared to shorter-term marriages. However, a same-sex couple legally married for nine years, but who lived as married for 25 years, may be viewed similar to an opposite-sex couple legally married for 25 years. After all, it is not the same-sex couple’s fault they could not get married until relatively recently.
Since 2011, Illinois has had civil unions, which same-sex couples could enter. It is still possible for same-sex and opposite-sex couples to choose a civil union rather than a marriage. This can occur for many reasons. Perhaps the parties want the legal protections of marriage without being married. Maybe they do not want federal recognition of their marriage. Whatever the case, some couples in Illinois who were in civil unions later got legally married when it was possible. Others did not.
The outcome of a same-sex alimony situation can hinge on many factors. It is important to get a lawyer well-versed in these issues and other same-sex issues. For instance, if you plan to ask for alimony, it can help to show that you lived together before getting married and acted as married in all substantial respects. Judges should carefully assess what that cohabitation looked like. Documentation, such as copies of leases and witness testimonies, can be critical.
Having prenuptial or postnuptial agreements can offer a lot of clarity, too. Some same-sex couples may have such agreements to address spousal support and property division issues, among many others.
Property Division for Same Sex Divorces in Oakbrook Terrace, IL
Same-sex couples could not get legally married in Illinois until June 2014. Many already lived together and had amassed assets and property. Both partners may have used these assets, but the court might consider them mostly or entirely separate property.
Say a couple has been together for 25 years and now own many assets. Legal marriage occurred six years ago. Depending on the situation, the court might say that one spouse can benefit from an increase in the value of certain assets from only the past six years, since the marriage occurred, versus the past 25 years. This is one reason it is important to talk with attorneys who have experience in these matters.
Retaining a Same-Sex Divorce Lawyer
When you are talking with a prospective uncontested divorce lawyer, ask about the lawyer’s experience with same sex divorce and matters in your case. These matters may include a long-term partnership that did not become legally recognized until recently, which can complicate spousal support and property division. You can also ask general questions about matters you are unclear on, for example, regarding a marital settlement agreement vs. a divorce decree.
Erlich Law Office is here to help with your same-sex divorce and custody issues. Contact us today.
