Same-Sex Divorce: Key Legal & Practical Considerations In Illinois

While the Supreme Court’s 2015 ruling in Obergefell v. Hodges guaranteed marriage equality nationwide, same-sex couples still face unique legal and practical challenges when it comes to divorce. For many, the end of a marriage can involve questions of parental rights, property division, and spousal support, layered with societal stigma and emotional challenges. Understanding these issues is crucial for making sure that the dissolution of a same-sex marriage in Illinois is handled fairly and efficiently. If you are exploring the idea of divorcing, have been served papers, or are in the midst of one and you have questions, our Deerfield, IL same sex divorce lawyer is here to help.

Parental Rights Issues

One of the most significant challenges in same-sex divorces involves parental rights. Unlike opposite-sex couples, where biological parentage is often straightforward, same-sex couples may face more complicated questions about legal parentage and custody.

• Biological Vs. Non-Biological Parents

In Illinois, a biological parent is automatically recognized as a legal parent. However, a non-biological parent—especially in female same-sex couples—may not automatically have parental rights if they did not adopt the child. This distinction can become particularly important during divorce proceedings, as custody and visitation decisions hinge on recognized parentage.

For male same-sex couples, the situation can be more complex. Gestational surrogacy contracts and assisted reproductive technologies must meet Illinois law’s standards for parental recognition. Courts require proper documentation to establish legal parentage, making sure that both partners’ parental rights are protected during divorce or custody disputes.

• Second-Parent Adoption Importance

Because biology alone may not confer legal parentage, second-parent adoption is essential for many same-sex couples. In Illinois, a second-parent adoption allows a non-biological parent to become the legal parent without terminating the rights of the biological parent. This makes certain that both parents have equal rights and responsibilities regarding the child’s upbringing.

Failing to complete a second-parent adoption can result in disputes over custody, visitation, and decision-making authority. Therefore, couples planning a divorce should review adoption records and consult with experienced family law attorneys to secure the legal rights of all parents involved.

Property Division Complications

Property division in same-sex divorces can present unique complications, particularly for couples who were together for many years before marriage equality was recognized in Illinois in 2014.

• Long Relationships Before Marriage Legality

Many same-sex couples have been together for decades but could not legally marry until relatively recently. This creates challenges when dividing assets acquired before the marriage. Illinois law generally considers property acquired during the marriage as marital property, subject to equitable division. However, assets obtained before the legal marriage may be considered non-marital, even if the couple jointly managed or shared them.

Courts may look at factors such as financial co-mingling, joint bank accounts, and shared contributions to property to determine what qualifies as marital property. For couples who have cohabited for many years prior to marriage, presenting evidence of joint ownership or contributions can be critical to achieving a fair division.

• Proving Co-Mingling Of Assets

Financial transparency is often key in property division disputes. Co-mingling of assets—such as jointly paying for a mortgage, investing together, or maintaining shared accounts—can demonstrate that certain assets should be treated as marital property, even if they were technically acquired before the marriage. Illinois courts strive for equitable outcomes, and clear documentation of shared financial responsibilities can support a non-biological or later-married spouse’s claim to a fair share of the property.

Spousal Support Trends In Same-Sex Divorces

Spousal support, or maintenance as it is called in Illinois, is another important consideration in same-sex divorces. Illinois law allows courts to award maintenance based on a variety of factors, including the length of the marriage, the standard of living during the marriage, the financial resources of each spouse, and the ability of each spouse to support themselves.

• Equal Application of Maintenance Rules

While the rules for maintenance are generally the same for same-sex couples as for opposite-sex couples, the practical realities can differ. For example, in long-term relationships where one partner delayed career advancement to support the other or the family, maintenance awards may be higher to reflect lost earning potential. Courts are increasingly recognizing the need to make sure equitable treatment for same-sex couples, particularly those whose marriages spanned the period before marriage equality.

Social Stigma & Emotional Challenges

Beyond legal challenges, same-sex divorces can involve unique social and emotional challenges. Despite broader societal acceptance, couples may face lingering stigma, family tensions, or bias from institutions. These pressures can exacerbate the emotional toll of divorce and make collaborative resolution more difficult.

• Emotional Considerations
  Divorce is often a stressful and emotionally draining process. For same-sex couples, navigating social perceptions and ensuring that both partners feel validated can be critical to a smoother transition. Engaging experienced legal counsel who understands the nuances of same-sex family dynamics can help mitigate stress and prevent additional trauma, especially when children are involved.

Case Study: Resolving A Same-Sex Divorce In Illinois

Consider a hypothetical example of Emily and Sarah, a same-sex couple who were together for 12 years and married in Illinois in 2015. They have two children, both the biological children of Sarah and adopted by Emily by way of second-parent adoptions. They jointly own a home and several investment accounts, some acquired prior to their legal marriage.

During divorce proceedings:

• Parental Rights: While parental rights to Sarah were presumed because she is the biological parent, because of the second-parent adoption, Emily also retained full legal rights to the adopted children. Custody and visitation were negotiated in the children’s best interests, considering stability, schooling, and emotional bonds.
• Property Division: The court examined years of co-mingled finances to determine which pre-marriage assets had become marital property. Emily and Sarah agreed to a fair division of joint assets, including the home and investment accounts.
• Spousal Support: Given that Sarah had temporarily left her career to focus on family responsibilities, the court awarded maintenance for a defined period to support her transition back into the workforce.

This case illustrates how careful planning, thorough documentation, and skilled legal representation can make sure

equitable outcomes for same-sex couples, even when the marriage spans periods before marriage equality.

Navigating Divorce With Confidence And Clarity

Same-sex divorce in Illinois presents legal and practical challenges that require thoughtful consideration. From parental rights and property division to spousal support and emotional well-being, these cases can be complex and nuanced. Engaging experienced family law counsel makes certain that couples receive fair treatment under the law, protect the rights of all parents involved, and navigate the emotional challenges of ending a marriage with compassion and clarity.

At Merel Family Law, we understand the unique dynamics of same-sex divorce and are committed to guiding clients through every step of the process. Our team of attorneys has over 221 years of combined experience helping clients with their family law needs. Our goal is to secure equitable solutions, safeguard parental rights, and support our clients’ financial and emotional futures. We have 24/7 live answering. Reach out to us today or any time you are ready.