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Same-Sex Divorce

Arlington Heights Family Attorney Discusses Same-Sex Marriage and Divorce

In the time that it has taken for same-sex marriage to be legalized nationwide, some same-sex couples have married in a state where their union was legal and been together long enough to determine that they want a divorce. Unlike many other states, Illinois has allowed same-sex couples to enter into civil unions since 2011. The state legalized same-sex marriages in 2014 with the passage of the Illinois Religious Freedom – Marriage Act. These couples gained the same rights as other married couples and Illinois began recognizing same-sex marriages that were performed in other states. Even though the state has been ahead of the national curve, same-sex divorces are still relatively new in the Illinois courts.

Procedures for Same-Sex Divorce

The procedures for dissolution of a same-sex marriage in Illinois are the same as for any other married couple seeking divorce.

  1. The case starts with the filing of a Petition for Dissolution of Marriage. In order to properly file in Illinois, one or both parties must establish residency within the state for at least 90 days prior to commencement of the case. The petition must state whether the divorce action is sought on fault or no-fault grounds.
  2. The petitioning party must serve the complaint on the other spouse.
  3. The other spouse files an answer to the petition or risks a default judgment from the court.
  4. The investigation and negotiation stage occurs, where the couple’s attorneys gather relevant evidence and prepare for a court appearance. The couple may also work toward a mutually-agreeable settlement through mediation. This stage may involve several status hearings in front of the court.
  5. A trial commences if no settlement is reached. At this stage, the divorce is granted and the court determines issues like custody, child support, spousal maintenance and the division of the couple’s property.

Special Considerations During a Same-Sex Divorce

  • Child Custody Determinations. In situations where one spouse birthed a child prior to the marriage and the other never formally adopted the child, the non-biological parent could have difficulty in asserting custody and/or visitation rights;
  • Lack of understanding about Retirement and Social Security Benefits. Same-sex partners have spent so many years without entitlement to spousal benefits that many individuals have no idea what they are entitled to receive following a divorce. This is why it is vitally important to retain the services of an attorney that is knowledgeable and up-to-date about same-sex divorce developments in the law;
  • Division of Property. The average age of same-sex newlyweds in the United States is about 40 years old. These later-in-life marriages provide ample opportunity for each party to accumulate separate property on their own, separate from his or her spouse. Even if this property is shared during the marriage, the court will consider its origin when deciding how to distribute it.

Work with a Cook County Divorce Attorney

Contact a knowledgeable and experienced divorce attorney who understands the unique challenges same-sex couples face to ensure that your interests are protected during the dissolution of your marriage. The SAM LAW OFFICE, LLC can provide you with the guidance you need in Prospect Heights, Mount Prospect, or other Cook County locations. Call today for a free consultation.

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