Since same-sex marriage was legalized in Illinois in November 2013, and federally in June 2015, LGBTQ+ couples have had equal access to marriage and divorce rights under state and federal law. Lesbian, gay, bisexual, transgender, questioning (LGBTQ+) marriage is similar to opposite-sex marriage and includes the same rights to share property and assets, file joint tax returns, receive retirement and veterans’ benefits, and to establish joint custody of children in a family with same-sex parents. In some key areas, however — especially in the context of child custody — legal protections for partners in same-sex marriage require additional considerations. The same is true for divorce or marriage dissolution in relationships with same-sex partners. An experienced attorney with a clear understanding of these laws is a critical tool in helping couples and individuals navigate the legal landscape of LGBTQ+ marriage and divorce.
Illinois Divorce Laws
Illinois is a no-fault divorce state for both same-sex and opposite-sex couples: you do not need to provide the court with a reason why you and your spouse wish to end your marriage. According to the Illinois Marriage and Dissolution of Marriage Act, in order to be granted a divorce, a couple must only prove:
Irreconcilable differences have initiated the failure of the marriage.
Previous efforts at reconciliation have been unsuccessful.
Future efforts at reuniting are unrealistic and not in the best interests of the family.
Key considerations during divorce proceedings for LGBTQ+ couples include the divisions of property, assets and debt; the allocation of parental responsibilities; child support and spousal support or maintenance.
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Key Custody Considerations in an LGBTQ+ Divorce
While opposite-sex and same-sex marriages have the same broad legal protections, child custody in an LGBTQ+ divorce can be more complex, especially in cases of adoption or where only one spouse is the biological parent of a child or children. Much of the framework for the allocation of parental responsibilities comes from the Illinois Parentage Act.
The Illinois Parentage Act legally recognizes parents of children under these circumstances:
If the child was born during a legal relationship, civil union, or marriage, even if that union is later voided.
If an individual marries the child’s mother after the child is born, even if that marriage is later voided
If the child was born within 300 days of the dissolution of a legal relationship, civil union, or marriage.
All legally recognized parents have an equal right to seek custody of their child. In the event of a custody dispute during a divorce, the court may appoint a Guardian ad Litem to advocate on behalf of the child or children.
A Guardian ad Litem is an experienced attorney for the children of two parties involved in a divorce or other dispute over parenting issues. Their role is to interview the children and both parents, investigate the case, and then testify to the court, or submit written recommendations, outlining what outcome is in the best interests of the child or children. This is slightly different from a child representative, as representatives do not testify and are not cross-examined.
Mike Schiffman has decades of experience navigating all aspects of marriage, divorce and family law, and is often appointed by the Court as Guardian ad Litem for minor children. Call today for a free one-hour consultation to learn more about your options.