On November 20, 2013, Illinois became the sixteenth state to legalize gay marriage after the passage of the Illinois Religious Freedom and Marriage Fairness Act. Nearly a year later, the Supreme Court ruled, in the seminal decision of Obergefell v. Hodges, that same-sex couples had the fundamental right to marry under both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. With this new guarantee of rights to same-sex couples, Illinois law has had to address new issues regarding spousal benefits, division of personal assets, and parentage when encountering the dissolution of same-sex marriages.
As far as actually filing for divorce, same-sex couples have the same process as any other couple. Either spouse can file a Petition for Dissolution of Marriage to initiate the proceedings, typically in the county where one of the spouses resides. However, because same-sex marriage is such a new development in the law, the duration of the marriage may present unique challenges with respect to property division and calculation of maintenance, or spousal support.
Division Of Property
Many same-sex couples may have conducted themselves as married for decades before same-sex marriage not being legalized in Illinois until 2014. Some may have even had a marriage-like ceremony to celebrate their commitment to each other. However, because the Illinois Religious Freedom and Marriage Fairness Act is a new progression in the law, many same-sex couples have only been legally married for a relatively short period of time. This is important to understand when dividing marital property in a divorce case.
Illinois utilizes an equitable distribution of marital assets. The Court determines the division of the property based on what is fair rather than dividing everything evenly between the parties. To accomplish this, the Court must first determine what property is “marital.” Marital property is generally considered all property acquired during the marriage or civil union. This presents a unique issue for same-sex couples who lived as though they were married and acquired property before they were allowed to legally marry. When dividing marital property, the Court must again consider all relevant factors including, without limitation, the duration of the marriage, the economic circumstances of each spouse, and the amount and source of each spouse’s income. Therefore, assets that the couple may have acquired over years together may not be considered marital property simply because the property was acquired prior to the legalization of same-sex marriage in 2014.
Entering into a prenuptial or postnuptial agreement may be a way to address some of these concerns. A postnuptial agreement would essentially serve as a written contract that expressly delineate certain assets as marital or nonmarital property regardless of date of the couple’s marriage.
Spousal Maintenance
Maintenance in Illinois, commonly referred to as spousal support or alimony, is a payment from one spouse to another after dissolution of the couple’s marriage so that both parties can maintain a similar lifestyle to the one they enjoyed while married. In Illinois, the duration of maintenance payments after divorce directly correlates to the length of the parties’ marriage. If a couple is married for over 20 years, the lower earning spouse could be entitled to maintenance for a period equal to the length of the marriage or even indefinite maintenance. However, because same-sex marriage has not been legally recognized for decades, couples who have lived as spouses for longer than same-sex marriage has been legal, the statutory guidelines may limit the duration of maintenance only to the years that the couple was legally married which could have been lower than the number of years that the couple lived as though they were married. Application of the statutory guidelines without consideration for the specific facts and circumstances of same-sex couples could result in maintenance awards and obligations that are neither equitable nor just.
Because Courts have discretion in the division and allocation of marital property and Courts may deviate from the statutory guidelines when calculating the amount and duration of spousal support, it is important to retain an experienced family law attorney who understands the unique facts and circumstances that impact your same-sex divorce. Contact our attorneys at Hayes Law for a free consultation to learn more about how we can assist you with your same-sex divorce.
