FAQS About Same-Sex Divorce in Illinois

Divorce is certainly the last thing you think about when you and your spouse are exchanging vows. However, for whatever reason, divorce happens. If you and your spouse have decided that divorce is the correct pathway for you, there are a few things that you’ll need to know, especially if you are in a same-sex couple. Given that same-sex marriage was only recently made legal in the United States, there are many questions that same-sex couples seeking a divorce may have.

We at Nottage and Ward, LLP have years of experience working with same-sex couples hoping to end their relationship and move into the next stages of their lives. The process can be difficult to go through. Divorce can quickly become heated and emotional, slowing things down or making them toxic. However, with a skilled Chicago same-sex family lawyer by your side, you can trust that your case is being handled by a professional who has your best interest at heart. For a compassionate and diligent divorce attorney, call our firm at (312) 332-2915 today.

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Q: First, is same-sex divorce legal?

Illinois legalized same-sex marriage in 2013, just a year before the Supreme Court made a momentous ruling that legalized it federally in 2014. Since then, same-sex marriage has been legal for all American couples that meet the same requirements previously given to straight couples. Because same-sex marriage is now legal, that means that same-sex divorce is now also legal.

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Q: Okay, so I can get divorced in Illinois?

Yes and no. While same-sex divorce is legal in Illinois, there are certain restrictions on who can get a divorce in the state. You will have to fulfill two requirements in order to get a divorce in Illinois.

First, it depends on your marital status. In order to get a divorce, you have to be legally married.

Second, in order to get a divorce in Illinois, you have to meet a residency requirement. Either you or your spouse must be a resident of the State for the 90 days immediately preceding filing for divorce or be a resident of the State for 90 days immediately preceding when the Court makes its findings for divorce.

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Q. Is there a difference if we never married and stayed in a civil union?

In Illinois, civil unions became legally recognized in 2010 for couples of all sexual orientations. It granted LGBTQ+ people many of the same rights that a straight couple would have following a marriage. The key difference between the two arrangements was the actual act of marriage and the signing of a marriage certificate. When same-sex marriage in Illinois became legal three years later, and then federally the year after that, some same-sex couples decided they were happy to stay in their civil union.

If you are in a civil union and are now hoping to leave your partner, then the process is very similar to a divorce. You and your former partner will still be able to split assets, will still have to file for the dissolution of the union with the court, and will also still want to ask for the help of a family law attorney. A skilled attorney can help walk you through the process of leaving a civil union and help you get the assets that are rightfully yours.

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Q: Is the divorce process different than for different-sex spouses?

No. The process is the same. You will follow the same procedures and will file the same dissolution of marriage. Same-sex couples are also able to receive alimony, be awarded custody, visitation, and support for children. The division of marital property is the same. However, the issue of marital property actually exposes a different issue. Because of how recently same-sex marriage was legalized, there are many same-sex couples that have been together for a long time before they were married. In this case, their marital property is only what they accrued while actually being married.

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Q. How will our children factor into our divorce?

Determining custody of children is one of the most difficult parts of any divorce. Both parents want as much time with their children as possible, which means that the proceedings can become heated. How the court will decide on your allocation of parental responsibilities will depend on several factors.

First, was the child born within the marriage? If yes, then both parents would have full legal rights, even if only one is genetically related to the child, such as in sperm donations or surrogate pregnancies.

Second, if the child was born after the marriage was dissolved, did it happen within 300 days of the official date of divorce? If yes, then once again both parents have full parental rights, unless one member of the couple entered a new relationship and the child was born into that relationship. For example, if a bisexual woman left a same-sex relationship and had a child with a man within 300 days of the divorce, the child would not be considered the former wife’s baby.

Third, if one of the first two conditions are met, but the couple is not legally married or in a civil union, did they legally try to enter a union or marriage? While it doesn’t happen often, clerical errors and other such mistakes are possible. Sometimes a couple did everything correctly, but somehow did not end up legally married. Or their marriage, at the time of their attempt, did not meet legal standards, and so could not be counted. In such an instance, the important question is whether or not the couple tried to file for a legal marriage. While they will not get the benefits that marriage brings, the non-birth parent of the child will not be penalized for not being legally married to the other parent and they can receive parental responsibilities.

Fourth, if the child was born before the marriage or union was established, but the non-birth parent adopts the child legally and adds their name to the child’s birth certificate, then they have equal rights to parental responsibilities.

All of these rules apply equally to straight and same-sex couples. Ultimately, if you are worried about whether you will be granted the same parental rights as your former partner, the most important thing is whether you have legally adopted your child or not. A legal adoption means that you are the child’s parent, whether you are related to them genetically or not.

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Q. Who can I talk to about my divorce?

If you are seeking a same-sex divorce, the Chicago same-sex family law attorneys at Nottage and Ward, LLP are ready to assist you. We are dependable and experienced in navigating the negotiations, litigations, and challenging issues that can arise during a divorce. Whether you are filing for a no-fault divorce (in which the marriage simply isn’t working out) or an at-fault divorce (in which a spouse has to prove the reasons, like adultery, addiction, etc., are justified), contact Nottage and Ward, LLP. We can be reached at (312) 332-2915.

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