Same-sex marriage has been legal in the state of Illinois since 2014, but last year in the landmark case Obergefell v. Hodges, the U.S. Supreme Court held that bans against same-sex marriage were unconstitutional in any state. This opened the door for all same-sex unions in the United States to enjoy the same legal recognition as straight couples, considerations that also extend to divorce law. While the basics of seeking a dissolution of marriage in Illinois are now the same for any couple, regardless of the genders of the spouses, there are still some issues surrounding same-sex divorce that have not been completely addressed by the courts yet.
The Divorce Process in Illinois
Any couple seeking a divorce in the state of Illinois must meet the following procedural requirements:
- At any time, either spouse may file a Petition for Dissolution of Marriage, which then must be served on the other spouse. The spouse that receives the Petition has the opportunity to file a response to the allegations contained within;
- One or both spouses must be Illinois residents for at least 90 days before filing the Petition for Dissolution of Marriage;
- Under the 2016 changes to the Illinois Marriage and Dissolution of Marriage Act, a spouse may only cite irreconcilable differences as the reason for seeking a divorce. If the couple has lived apart for at least six months, there is an irrefutable presumption that irreconcilable differences have led to the breakdown of the marriage;
- Once a court has established that it has jurisdiction and the receiving party has been properly served, the parties may begin discovery and negotiation. This involves exchanging documents about assets, and possibly depositions. Usually the parties must make several trips to court, and attorneys will negotiate how property will be distributed, and what sort of spousal and child support is necessary, if any; and
- If the parties are unable to settle their differences on their own, a trial commences. Following the trial, the court will decide any unresolved issues about property and maintenance.
Unique Issues in Same-Sex Divorce Cases
Child custody can be especially complicated in same-sex divorce cases. Often, a child living with the couple will have been born from a prior relationship. While that child may have a parental relationship with the non-biological parent, if that parent never went through the legal process of adopting that child, a court may be hesitant to award any custody or visitation rights.
As many same-sex couples are older but have only been legally married for only a few years, in many cases, each spouse will have accumulated a large amount of property before the actual marriage. Despite having shared the property over the years, such assets are legally considered non-marital property. This can be an especially thorny issue in the course of a divorce.
Contact an Experienced Attorney
Divorce is never easy, but if you are considering filing for divorce, an experienced family law attorney can help ensure that you get the share of marital property to which you are entitled. Reach out to our compassionate DuPage County family law attorneys today for a consultation.