Same Sex/LGBTQ Divorce

On November 20, 2013, the Illinois legislature passed the Religious Freedom of Marriage Act that legalized same sex marriage, effective June 1, 2014. After that date, not only were gay and lesbian couples allowed to marry legally in the state of Illinois, but same sex marriages performed in other states were recognized here. In 2015, a landmark Supreme Court decision effectively approved same-sex marriage in all 50 states. Under the law, same-sex couples now have the rights to file joint tax returns, pensions for a surviving married spouse, holding real property together as tenants-by-the-entirety, not to testify against a married spouse, hold real property together, veterans benefits, equal treatment as spouses under certain state insurance laws, and all other rights and responsibilities spouses receive through marriage. This also means that, assuming all jurisdictional requirements are met, same-sex couples will also be able to to obtain a divorce in Illinois. In a dissolution of a marriage or civil union for a gay or lesbian couple, the court will not divide property acquired by the parties before the marriage.  This may be highly relevant as gay and lesbian couples may be married later in life given the more recent changes to the law. If one spouse has significantly more assets, the other spouse may be awarded maintenance (formerly known as alimony). Thus, same-sex couples should consider whether a prenuptial or postnuptial agreement is necessary to protect income or assets of a party, including if the couple has been together for a significant period of time predating the marriage.

Gay and lesbian couples have unique child-related issues in their cases, and complex parenting  issues exist if only one parent is the legal guardian of a child or children, such as when one party did not adopt children during the marriage or if the child was born to surrogacy prior to the marriage.  If both parties are the legal parents, same-sex couples have the same parental obligations, rights, and issues just like any other divorcing couple.

The Law Office of Erin M. Wilson LLC recognizes that LGBTQ couples have unique issues, and have counseled clients from a variety of backgrounds so we are here to help you understand your rights  and address your concerns.

Please contact The Law Office of Erin M. Wilson LLC for a consultation for a Same Sex/LGBTQ Divorce.