Tag Archives: same-sex divorce

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/

Same-Sex Divorce Issues in Illinois

same-sex, Wheaton divorce lawyersSame-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.

Sources:

http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=3700000&SeqEnd=5200000

Property Division Issues in Same-Sex Divorces

Illinios divorce attorney, Illinois family law attorney, Illinois marriage laws, civil union,Last June, Illinois law officially changed to allow same-sex couples to enter into full marriages. While this was a momentous occasion for many, it also opened up same-sex couples to the possibility of having to deal with a formal legal divorce down the road. Although the divorce laws apply to same-sex marriages the same way that they do to heterosexual marriages, there are a variety of practical differences that certain same-sex couples should consider. One of these issues comes up in the context of property division. Many same-sex couples cohabited in long-term, committed relationships that were not legally recognized marriages prior to the enactment of the new law. Those preexisting relationships can make distinguishing marital property from non-marital property more difficult.

Property Division Rules in General

In broad strokes, Illinois’ property division rule is that the courts divide marital property equitably, and leave non-marital property untouched. However, that requires courts to determine what pieces of property qualify as marital versus non-marital. Marital property is almost anything that a spouse acquires during the marriage. The exceptions to this are things like gifts to one spouse or inheritances that a spouse receives.

Importantly, that means that property that the spouses owned separately and brought into the marriage would count as non-marital property. However, that rule also contains an exception in the form of the transmutation doctrine. The transmutation doctrine is the legal way in which something that was non-marital property turns into marital property over time. This usually occurs when the spouses collectively invest marital property in something that was non-marital, such as using marital funds to pay the mortgage for a house that one spouse owns, or if the other spouse spends time and effort improving the property.

Unique Issues in Same-Sex Divorces

Same-sex divorces may involve extra difficulties in property division because the couple may have previously cohabited for a long period without the legal protection of marriage. In these cases, courts will have to separate out non-marital property that the couple purchased while they were cohabiting. The law in Illinois does not provide special property protections for non-married, cohabiting couples. However, some property that the couple acquired during the period of cohabitation may have transmuted at some point during the couple’s marriage.

Another unique property division issue centers on what happens if the couple who is now married had previously entered into a civil union. The easiest solution to this problem is to be proactive and take advantage of a grace period offered by the new marriage law. That grace period gives couples until this June to convert their civil union into a marriage. If they choose to do so, then they can also make their marriage retroactive, starting on the date of the civil union.

Same-sex marriage and divorce are recent legal changes in Illinois and much of the law surrounding them is still developing. If you have questions or are considering a divorce, contact a skilled DuPage County divorce attorney today.