Tag Archives: same-sex couples

How Are Child Custody Disputes Handled in a Same-Sex Divorce?

Wheaton same sex divorce lawyerAround 16 percent of same-sex couples who live in the same household are raising children together, according to The Williams Institute. In addition, adoption by same-sex couples has nearly doubled since the early 2000s. Many of these couples face difficult circumstances when their relationships fall apart or their marriages end in divorce. In these cases, child custody disputes can be complicated, highly emotional events that often leave one or both parties unhappy when the final decision is made by a judge. These situations can particularly complex when one parent is the biological parent of the child and the other is not.

When the Child Is Adopted, and Both Spouses Are Legal Parents

When a same-sex couple adopts a child together, and each spouse is a legal parent, decisions about child custody will be resolved in the same manner as if both parents were biological parents. If the couple cannot come to an agreement out of court, a judge will make a decision in favor of the child’s best interests. Deciding factors include the parenting abilities of each party, the emotional bond that each parent has with the child, the child’s preference if they are old enough, the financial ability of each parent to provide for the child, the work schedule and career demands of each parent, and much more.

What if Only One Spouse Is a Legal Parent?

In some same-sex relationships, only one spouse or partner may be the legal parent for a variety of reasons. In these cases, it can be difficult for the other parent to receive any custody or visitation rights. A spouse who is not a child’s legal parent may need to prove their relationship with the child and demonstrate their intent to raise the child to the court.

When or Both Parties Are the Biological Parent of the Child

In some same-sex marriages and relationships, one spouse has a biological child or multiple children from a previous marriage that they bring into the relationship. Their same-sex partner may become a legal guardian of the child or children, or they may adopt a child as a step-parent. While a biological parent will often retain the majority of the parenting time in these cases, the other parent will have the right to share in decision-making responsibility and parenting time.

If one parent’s sperm or one parent’s fertilized egg is used to create the child during the relationship with their spouse, things may become less straightforward. This is particularly true if in-vitro fertilization is used, and the fertilized egg of Spouse A is implanted into the uterus of Spouse B. In these cases, it is important to receive assistance from a skilled attorney who can help ensure that parental rights are protected.

A DuPage County Child Custody Lawyer Can Help

For same-sex partners who are going through a divorce or breakup, it is important to work closely with an experienced attorney who can ensure that you will be able to maintain a relationship with your children. Call the dedicated Wheaton family law attorneys at Andrew Cores Family Law Group today at 630-871-1002 to schedule a free consultation.

Sources:

https://williamsinstitute.law.ucla.edu/research/parenting/how-many-same-sex-parents-in-us/

https://williamsinstitute.law.ucla.edu/press/press-releases/as-overall-percentage-of-same-sex-couples-raising-children-declines-those-adopting-almost-doubles-significant-diversity-among-lesbian-and-gay-families/

Terminating a Domestic Partnership in Illinois

Wheaton civil union attorneyPrior to the 2015 Supreme Court case Obergefell v. Hodges, which legalized same-sex marriage in the United States, many same-sex couples entered into a domestic partnership. However, this term has been sunsetted in Illinois, meaning the laws regarding these relationships have been terminated. Both same-sex couples and opposite-sex couples now have a choice between civil unions and marriage.

If you hold a Domestic Partnership Certificate, you do not automatically qualify for the rights that married spouses enjoy, such as benefits, survivorship, or ownership rights. Your domestic partnership is still a matter of public record, thus maintaining its validity; however, no future Domestic Partnership Certificates will be issued. The term “domestic partnership” now refers to an informal, long-term, committed relationship rather than a legally binding union.

Entering into a Civil Union or Marriage

While same-sex marriage is now legal throughout the United States, some couples do not want to enter into a marriage and opt for a civil union instead. The option is available to same-sex couples and opposite-sex couples alike. The primary difference between civil union and marriage is that a civil union is solely recognized within the state of Illinois, while marriage is federally recognized. According to the Illinois Religious Freedom Protection and Civil Union Act, once you enter into a civil union, you are granted many of the same rights in Illinois as those offered to married spouses. If you opt to enter into a civil union or marriage, any existing domestic partnership automatically terminates without further documentation.

Dissolving a Partnership

If, however, you would like to end the relationship altogether, you may dissolve the existing domestic partnership by completing an Affidavit of Termination. The form does not need to be completed by both parties, but if only one party is present, the absent party must be notified by mail. In addition to filing the form with the County Clerk’s Office, a $30.00 fee is required. Termination is valid 30 days after the official filing date. Unfortunately, a domestic partnership does not offer any of the protections provided through marriage or civil unions.

Dissolution of a Civil Union

As with marriage, you may legally terminate a civil union through dissolution or a declaration of invalidity. The procedure to dissolve a civil union is the same as divorce, with the only difference being the wording. Previously, domestic partnerships did not have the same legal protections.

Ask a DuPage County Domestic Partnership Lawyer

The lines between the domestic partnership, civil unions, and marriage are blurry, and the laws surrounding these type of partnerships continue to evolve each year. If you have questions regarding your rights in any of these relationships or the process of dissolving them, a Wheaton family law attorney can help. At Andrew Cores Family Law Group, we will clarify any questions you may have and aggressively defend your interests should you choose to terminate your relationship. Call our office today at 630-871-1002 to schedule your free, confidential consultation.

Sources:

https://www.cookcountyclerk.com/agency/domestic-partnerships

http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1513

https://www.isba.org/ibj/2011/05/aguidetothenewillinoiscivilunionlaw

Can Unmarried Same-Sex Couples Get “Divorced” in Illinois?

same-sex, Wheaton divorce attorneySame-sex marriage has been legal in Illinois since 2014. Of course, many same-sex couples cohabited for years, even decades, prior to this change in the law. The Illinois Supreme Court recently addressed whether unmarried same-sex couples who ended their relationship prior to 2014 could enforce “marriage-like” rights with respect to the division of property.

Supreme Court Rules Cohabiting Partners Cannot Assert Common-Law Marriage Claims

The plaintiff and the defendant in this case were in a long-term domestic partnership from approximately 1981 until 2010. The couple co-owned their home. After the relationship ended, the plaintiff moved out and sued the defendant, seeking a “fair division and partition” of the property. The defendant filed a counter-claim, alleging she and the plaintiff had a relationship “identical in every essential way to that of a married couple,” and accordingly sought division of the couple’s property based on the same principles as Illinois divorce law.

The plaintiff opposed the counter-claim, noting that under Illinois law “unmarried cohabitants” could not “enforce mutual property rights where those rights are rooted in a marriage-like relationship between the parties.” Specifically, the defendant was proposing she had a common-law marriage with the plaintiff, which is expressly barred by Illinois law.

A common-law marriage is a relationship that is treated as a marriage for legal purposes even though the couple never participated in a formal ceremony or registered their union with the appropriate authorities. Only a handful of U.S. states still permit common-law marriages. Most prohibit or restrict recognition of such unions. The Illinois General Assembly banned common-law marriages as of July 1, 1905.

In 1979, the Illinois Supreme Court held this statewide ban on common-law marriage prevented unmarried cohabiting couples of any kind from asserting marriage-like rights under state law. In this case, the defendant argued this decision was no longer applicable given shifts in public policy, including the legalization of same-sex marriage in Illinois. In response, the plaintiff said the 1979 decision remained valid because it reflected the “ongoing public policy that individuals acting privately by themselves cannot create a marriage relationship and that the government must be involved in the creation of that bond.”

The Supreme Court agreed with the plaintiff. In a written opinion, the justices reaffirmed its 1979 decision and said couples cohabiting outside of marriage could not assert the same common-law property claims as divorcing couples. The Court said it was up to the legislature, not the judiciary, to change the law in this regard.

A Lawyer Can Help

Many people cohabit or live in long-term arrangements outside of marriage. Although these couples may not be entitled to the same rights as divorcing spouses under Illinois law, there alternative ways for cohabiting individuals to end their relationship in a productive manner that avoids litigation. A passionate DuPage County family law attorney can assist you with alternative forms of dispute resolution such as mediation. Contact our offices today if you would like to speak with an experienced lawyer about your situation.

 

Source:

https://scholar.google.com/scholar_case?case=18027233342630622025&hl=en&as_sdt=6,47