Illinois’ new law allowing same-sex marriage has brought equality — and unique family law issues — to the state.
The Illinois Freedom of Religion and Marriage Fairness Act went into effect in the beginning of June. According to Equality Illinois, over 5,000 same-sex couples have since tied the knot and become entitled to the same rights and obligations as married heterosexual couples in the state.
Among other provisions, the new law allows civil unions to be converted to marriages and provides that all laws in the state that refer to marriage or related terms now apply to same-sex couples who enter into a marriage. Illinois has numerous laws that grant legal rights to a spouse.
Combined with the U.S. Supreme Court’s overturning of portions of the Defense of Marriage Act in 2013, same-sex couples in the state now have unprecedented legal rights and recognitions compared to just several years ago. These rights include the ability to visit a spouse in the hospital, automatically inherit property from their spouse, and file taxes jointly. In fact, there are over 1,000 federal protections based on marital status, all of which legally recognized same-sex couples in Illinois now receive.
Importantly, the right to marry also carries with it the right to divorce, parenting rights, and financial obligations, which have a significant effect on family law in the state.
Same-sex divorce and finances
While same-sex marriage is rightly being celebrated in Illinois, it is hard to rejoice in divorce. Still, the right to divorce is integral to same-sex couples. In states that have long recognized same-sex marriage, such as Massachusetts, it is no surprise that same-sex couples get divorced about as often as those in heterosexual marriages. Through divorce, couples are able to equitably divide property, protect their financial interests and establish custody agreements for children.
Previously, same-sex couples would have to enter into a contractual agreement in order to ensure equitably divided property in the event of a split. It is still a good idea for many to enter into a prenuptial agreement – available to all engaged couples – but Illinois law now grants basic protections to a spouse in a same-sex marriage even without a prior legal agreement. For example, if one spouse stays home to care for children, he or she may be entitled to spousal support if the couple gets divorced.
Parenting and second-parent adoption
Under Illinois law, married parents are presumed to be the parents of any child born into the marriage. This includes the legal rights and responsibilities attached to being a parent, including custody, visitation rights and child support obligations.
For same-sex couples, however, it is still best for the non-biological parent for the couple to complete a second-parent adoption. Other states may not recognize same-sex marriage or the presumption of parentage it creates. That also means that same-sex couples, when traveling, may wish to first complete a financial and medical power of attorney and bring those documents along should the unexpected happen and medical decisions need to be made.
Contact a family law attorney
Same-sex couples who are married or wish to marry should speak to an experienced family law attorney regarding their legal rights and responsibilities. Among other issues to explore, a same-sex couple may wish to discuss entering into a prenuptial agreement, creating financial and medical powers of attorney, or having a parent formally adopt a child.
Keywords: Same sex marriage, marriage equality, divorce, adoption.