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LGBT Issues

LGBT Issues / Same Sex Marriages & Illinois Divorce

What is the Status of Same Sex Marriages in Illinois?

Recently, the United States Supreme Court resolved this issue.  The law in the States is now clear. Based on Obergefell v. Hodges in all 50 states there is a right to same sex marriage. This decision states:  “These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them.”

Does this mean that we have resolved all the issues involving same sex relationships in Illinois?

Not quite.  Many long term relationships in a sense pre-dated a couples civil union or marriage.  In such cases it is often appropriate to consider a post-nuptial agreement reflecting the nature of nature of the relationship because otherwise the marriage will be considered from the date of the civil union or the marriage and not from the time in which their marriage like relationship may have been otherwise celebrated.

What other issues are there that are unique?

Often, there are children of same sex couples and there may not be an underlying agreement (such as a post-nuptial agreement) or required documents such as a related adoption to ensure that the treatment of children is as the couple intends.  It is critical that a lawyer be consulted to discuss matters to ensure that if there is a break-up of the marriage, that the intentions are consistent with what is equitable and appropriate.

What issues are the same?

In a divorce key rights include retirement plans.  Prior to Obergfell the Court had changed the federal definition of marriage to include same sex couples in U.S. V. Windsor.   Accordingly, even prior to Obergfell, pension plan sponsors needed to amend their plan documents to recognize same sex marriages for the purpose of spousal benefits (see Rev. Ruling 2013-17).  Retirement assets of same sex couples are marital assets but the key aspect of this is the date of the marriage.


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