Proponents of marriage equality see the right to marry as fundamental to human dignity. However, very few advocates tend to think about the things that go along with marriage— namely, divorce. While in Illinois, same-sex couples have been permitted to marry and divorce in the same manner as opposite-sex couples for a number of years, the law was much slower to change in other states. While same-sex marriage was legalized nationwide in the summer of 2015, it can sometimes be an enormous hassle for same-sex couples to obtain a divorce, especially if there are children involved.
Is Divorce Possible?
All 50 states now recognize the legality of same-sex marriage, which means there must be a legal process for dissolving such marriages. The reality, however, is that many states have yet to update their divorce-related statutes to include gender-neutral language. Therefore, if you live in Illinois or were married in Illinois, it may be best to obtain your divorce in Illinois as well, even if you or your spouse now lives in another state.
The process of divorce is virtually the same for same-sex couples as it is for opposite-sex couples. However, there are some potential wrinkles in the questions that often accompany divorce, such as property settlement and parental responsibilities.
Property settlement for a same-sex couple can be somewhat difficult when the two people have lived together for a long time prior to their legal marriage. It gets more difficult to divide assets if two people have been in a committed relationship for years—normally, property is divided into marital and non-marital assets. However, if a same-sex couple has been living together for years—many of those during which they could not marry—identifying marital and non-marital property may be much more difficult. In most cases, only property acquired on or after the date of legal marriage may be considered marital property, even if the same-sex couple has been together for decades.
The allocation of parental responsibilities—formerly called child custody—can also create pitfalls, especially between two women. If one partner is the biological mother of a child, she may be granted more rights than the non-biological mother, despite both partners likely having had an equal relationship with the child. If one partner in a same-sex marriage has not formally adopted the couple’s children, he or she may be legally barred from exercising parental rights. All of these issues can be difficult and painful for the people involved.
Helpful and Compassionate Professionals Are Available
If you are going through a divorce, you have enough issues on your plate without worrying about potential complications due to gender or sexual orientation. Contact an experienced Wheaton divorce attorney to discuss your case. Call 630-871-1002 for a free consultation today.