The legalization of same-sex marriage in the United States has been a significant win for the LGBTQ+ community. However, same-sex couples in Illinois still face unique legal challenges, especially when it comes to family law. This guide provides an overview of Illinois family law and LGBTQ+ rights to help same-sex couples navigate through the legal system.
Marriage and Divorce
Marriage
Since June 1, 2014, same-sex couples in Illinois have been allowed to legally marry, enjoy all the benefits, and face the same obligations as opposite-sex couples. In Illinois, same-sex couples can obtain a marriage license, and legally marry in the same way as opposite-sex couples. Interestingly, couples are not required to live in Illinois to obtain a marriage license, which makes it more convenient for those who don’t reside in the state.
Divorce
Marriage dissolution, commonly referred to as divorce, between same-sex couples is treated in the same way as opposite-sex divorces. Illinois is a "no-fault" divorce state, meaning couples can file for divorce without alleging that either person is at fault. Additionally, Illinois law requires 90-day residency for at least one of the spouses before the divorce can be granted. This residency requirement ensures that couples have a genuine connection to the state before dissolving their marriage.
Parental Rights
Biological Children
If one of the same-sex couple’s children is conceived through a sperm or egg donor, the biological parent has parental responsibilities and rights. Illinois law allows a sperm or egg donor to terminate parental rights by written agreement with the other parent. This legal provision grants flexibility to couples who may wish to define and regulate their parental rights based on their individual circumstances.
Adoption
If a same-sex couple plans to have children through adoption, Illinois law allows them to do so through the same process as opposite-sex couples. After the adoption, both parents have equal rights and responsibilities towards the child. Additionally, Illinois law requires adoption agencies to take all reasonable steps to ensure that the couple’s sexual orientation does not negatively affect the child’s welfare. This safeguard ensures that same-sex couples have an equal opportunity to build their families through adoption.
Surrogacy
Surrogacy is an alternative means of having biological children. In Illinois, same-sex couples can enter into surrogacy agreements. Illinois law has specific requirements for surrogacy agreements that couples must follow. These agreements must be in writing and executed before a judge. The agreement must also address the terms of payment, medical procedures, and the relinquishment of parental rights by the surrogate. Once complete, the parents must obtain a parentage order from a court. The strict regulations surrounding surrogacy agreements protect all parties involved and ensure that the rights of the child, the intended parents, and the surrogate are respected.
Property Rights
Marital Property
Marital property is any property acquired by the couple during the marriage. In Illinois, marital property is divided equitably in the event of a divorce. An equal division of property does not always mean a 50/50 split, but rather an equitable division based on factors such as the length of the marriage, each spouse’s income and resources, and their respective contributions to the marriage. This approach acknowledges the unique circumstances of each couple and aims to achieve a fair division of property.
Joint Property Ownership
If same-sex couples jointly own property, they each have equal rights to own, use, sell, or give away the property. Both owners must sign any legal documents related to the property. If one of them dies without a will, the surviving partner is not automatically entitled to inherit the deceased partner’s share of the property. An estate planning attorney can help couples create a will, transfer-on-death deed, or trust to ensure that their partner inherits the property. It is crucial for couples to establish proper estate plans to protect their joint property and ensure their wishes are fulfilled in the event of death.
Domestic Violence
Domestic violence is a serious concern for all couples, including same-sex couples. Illinois law defines domestic violence as physical abuse, harassment, intimidation of a dependent, interference with personal liberty, or willful deprivation. Same-sex couples can obtain orders of protection prohibiting an abuser from contacting, harassing, or abusing them. These orders of protection are vital tools to safeguard the well-being and safety of individuals within same-sex relationships, offering legal avenues for victims to seek justice and protect themselves from domestic violence.
Conclusion
Illinois law provides protections and legal recognition for same-sex couples with regards to marriage, divorce, parental rights, property rights, and domestic violence. However, navigating the legal system can be complex and overwhelming, especially for those experiencing family law disputes. Seeking the guidance of an experienced LGBTQ+ family law attorney is essential to ensure the protection of one’s rights and fully understand the legal options available. With the right legal support, same-sex couples in Illinois can confidently navigate the complexities of family law and secure their rights and the well-being of their families.