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Illinois Ratifies ERA, But Gender Neutrality Already Exists in Divorce Laws

Posted on in Illinois Law

Illinois Ratifies ERA, But Gender Equality Already Exists in DivorceIllinois' Congress recently ratified the federal Equal Rights Amendment, making Illinois the 37th state to do so. The deadline for states to approve the amendment expired decades ago, but ERA advocates believe that reaching the 38-state requirement now would still allow the amendment to be enacted. ERA opponents have long argued that the amendment would allow federal overreach into state laws and diminish women’s rights in certain areas, including divorce and family law. However, Illinois divorce laws already include gender neutrality in their language.

ERA and Family Law

The ERA that the U.S. Congress approved is comprised of three sections, that state:

  1. A person’s sex cannot be used to deny him or her equal rights;
  2. Congress can use appropriate legislation to enforce the equal rights; and
  3. The amendment will go into effect two years after it is ratified.

Many people believe that the ERA could end divorce laws that favor a spouse based on his or her gender. For women, it may mean that state laws would no longer give them an advantage in receiving spousal maintenance or a majority of child custody. States have jurisdiction over divorce and family law, but the second section of the ERA implies that the U.S. Congress could create laws to enforce gender equality in divorce.

Illinois Effect

Those who are familiar with Illinois divorce and family law know that the laws have already been changed to be gender neutral. Lawmakers removed words such as “husband,” “wife,” “mother,” and “father” and replaced them with “spouse” and “parent.” Many Illinois divorce agreements still result in the traditional gender roles, such as:

  • Mothers receiving a majority of the allocation of parental responsibilities; and
  • Husbands being responsible for paying spousal maintenance and child support.

However, those traditional outcomes are now based on what is appropriate for each case. Mothers are still more likely to be the primary caregiver in a marriage, which is a major factor in determining parenting time. On average, men are still better paid in the workforce than women, meaning they are more likely to be responsible for support payments.

Federal Effect

Ratifying the ERA could theoretically create more uniformity in states’ divorce laws in regards to gender. When there is a dispute about which state has jurisdiction in a family law case, one state can give a party an advantage based on his or her gender. However, having uniform laws assumes that the U.S. Congress creates legislation to enforce gender equality. Some federal lawmakers will reject such legislation because they disagree with the principle or believe that the federal government should not be overruling states on their divorce laws.

Gender-Neutral Divorce

You should not assume that your gender will dictate outcomes in your divorce or family law case. A Kane County divorce attorney at Goostree Family Law will advocate for your equal rights during your divorce. To schedule a free consultation, call 630-584-4800.


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