Same-Sex Divorce in Illinois

 Posted on September 24, 2024 in Divorce

Being an adult can be difficult. We need to do things we would rather not, spend our money in ways we would prefer not to, and even think about things we would be happy to avoid. Whether you are buying insurance, drafting a will, or creating a savings fund to be used just in case your finances dwindle, there are many things you are forced to imagine against your will.

Marriage and divorce are no exception. And while same-sex couples used to live without the same legal rights, obligations, and privileges as other couples, that is no longer the case. However, since gay marriage was only recently legalized officially in America, there can be a lot of confusion about its various legal implications.

Thankfully, today the ability to get married goes hand-in-hand with the ability to get a divorce. If you are in a same-sex marriage that is reaching its end, speak with a skilled Wheaton, IL divorce lawyer to understand your options.

Can Any Couple Get Divorced in Illinois?

Same-sex marriage was legalized in Illinois in 2013, one year before the Supreme Court legalized it as a federal issue. Ever since, LGBTQ+ couples have been legally permitted to get married, and are entitled to the same rights as any straight couple, regardless of the sex or gender on a spouse’s birth certificate. That means these same couples can also get divorced.

However, not everyone can get divorced in Illinois. There are two main conditions you need to meet before you can be granted permission to get divorced in Illinois:

• Marital status: You need to be legally married to be able to get divorced. Before gay couples could get married, they could legally have a civil union, and after legalization, some couples decided to keep their status. However, if you have a civil union rather than a marriage, you are not eligible for a divorce. Rather, you must dissolve your civil union in a process that is very similar to divorce.

• Residency: At least one spouse needs to have been a resident of Illinois for 90 days before either of the spouses files for divorce.

If both conditions are met, you and your spouse will go through the same divorce process as any other couple in Illinois. You will file for a dissolution of marriage and resolve issues like alimony, custody, visitation, and child support, and create a plan for dividing your marital property.

Unique Issues for Divorcing LGBT Couples

Although LGBT couples can get married and divorced, there are certain challenges that they might face. One common and particularly difficult challenge is that of child custody, known in Illinois as parental responsibilities. Because many LGBT spouses have previously been involved in opposite-sex marriage, they share children with an opposite-sex partner who plays a major role in their child’s life.

When an LGBT couple is married, the non-biological partner will often also play a large role in a child’s life. Unfortunately, as long as both biological parents retain their parental rights, it is not possible after divorce for the non-biological parent to demand parental rights to the child, even if they have a close relationship. And even when there are not two biological parents involved, unless both LGBT parents have finalized their relationship with the child through the adoption process, child custody issues can likewise become complicated.

Another area of potential concern for divorcing LGBT couples is marital property. Many couples live together and share their lives well before getting married. This can lead to complicated questions around marital property in a divorce. Generally, any property that belonged to one spouse before a marriage will continue to belong to that spouse after a divorce. This can lead to fights and resentment because both spouses may have contributed to the value of the property long before the marriage, and those contributions may not be taken into consideration.

Schedule a Free Consultation with a DuPage County, IL Same-Sex Divorce Lawyer

If you and your spouse have decided to end your marriage, contact a qualified Wheaton, IL family law attorney who has experience with same-sex divorce. At Fawell & Fawell, we are passionate about helping families of all types overcome hurdles and turn the page so they can start a new chapter, whatever challenges they face. Call us at 630-871-2400 to schedule a free consultation.