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Same Sex Divorce in Illinois [infographic]

In Illinois same-sex marriages, generally, one spouse must be a resident of the state for at least 90 days prior to petitioning for a dissolution of marriage. In most cases, Illinois courts will grant a divorce for couples who resided in a state that refused to dissolve the marriage. An Illinois family lawyer who understands same-sex divorce issues can explain state laws that impact same-sex divorces.

The Defense of Marriage Act

The Defense of Marriage Act (DOMA) prohibited married same-sex couples from collecting federal benefits, among other restrictions. On June 26, 2015, the act was overruled by the U.S. Supreme Court decision in Obergefell v. Hodges, citing the equal protection clause stated in the Fourteenth Amendment. This protection clause states that denial of marriage rights to same-sex couples is unconstitutional.

Under previous DOMA rulings, no state was required to recognize same-sex marriages from other states. If a state did not allow same-sex marriage, it could refuse to recognize same-sex marriages from other states as valid. Even if the state residency requirement for divorce was met, courts could still deny a divorce if the couple lived in a state that didn’t recognize same-sex marriage. Under section 2 of DOMA (now revised), states that did not recognize same-sex marriage commonly denied enforcement of same-sex divorce judgments. Spousal and child support orders established by a family lawyer were often unenforceable in a state that did not recognize same-sex marriage.

With new rulings in 2015 protected by the Fourteenth Amendment, all states must now license a marriage between two people of the same sex, and recognize a marriage between two people of the same sex, even if the marriage was lawfully licensed and performed out-of-state.

Domestic Partnerships

Despite the Supreme Court’s 2015 ruling, some same-sex couples who opted for civil unions or domestic partnerships may still face problems in a dissolution of the partnership. Many same-sex couples who did not previously have access to marriage entered into civil unions or domestic partnerships instead. Although these arrangements are legally similar to marriage, not all states recognize them and will not dissolve them. In 2013, many states converted civil unions to marriages, but state governments are still resolving sweeping changes to marriage laws, as well as dissolution of civil unions and domestic partnerships handled through a family lawyer in state courts.

Illinois Same-Sex Divorce Laws

Illinois adopted a civil union law in 2011, making it the sixth state in the U.S. to recognize civil unions. According to the the state civil union law, same-sex couples in Illinois have the same rights as married couples, including the right to divorce. In 2013, Illinois became the 16th state to legalize same sex marriage under the Religious Freedom Marriage Act which took effect on June 1, 2014. According to this act’s legislation, all all same-sex marriages are treated the same as heterosexual marriages in Illinois. Same-sex marriages performed in other states are considered legal, and same-sex couples married in a different state can file for divorce with a family lawyer in Illinois courts, as long as jurisdictional requirements are met.

On January 1, 2016, many changes to family law in Illinois took effect. These changes affect everyone who has a divorce or child custody case in the state. The new family law changes in Illinois will not impact the rights of same-sex couples to marry, but they will impact legal separations, divorce and child custody laws for all married couples, regardless of sexual orientation. New laws will:

  • Eliminate at-fault divorces in Illinois. One spouse can not longer file for divorce and blame the marriage breakdown on the other spouse. With new laws, who is at fault for the divorce will no longer matter in Illinois courts. It will only matter that the marriage is irrevocably broken.
  • Eliminate the concept of custody in cases that involve children. New laws will establish a framework for parents’ rights and responsibilities. Children may still reside primarily with one parent, but this will no longer be referred to as “child custody.” The court will still assign “parent responsibility rights” based on the best interest of the child.

Contested Divorce Cases

In a contested same-sex divorce, an Illinois family lawyer can explain restrictions and problems that may impact the divorce case and make the divorce more difficult. Generally, a contested divorce occurs when there are disagreements concerning the following:

  • One spouse doesn’t want the divorce
  • Parental responsibility rights involving living arrangements
  • Child support payments
  • Spousal maintenance payments
  • Property division
  • Assignment of debts and assets

In uncontested same-sex divorces, settlement terms must still be approved by an Illinois court. According to law, divorce terms must be reasonable, and children must be properly supported.

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