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Posted on in Divorce

What Issues Do LGBTQ Spouses Face in Divorce?The U.S. has increasingly recognized the rights of couples who identify as lesbian, gay, bisexual, transgender, or queer (LGBTQ) in the past decade. The national legalization of same-sex marriage was a landmark decision for the LGBTQ community. The normalization of LGBTQ divorce naturally came with the broad legalization of LGBTQ marriage. On a basic level, divorce for LGBTQ spouses is functionally the same as for other spouses. Most divorce laws are gender-neutral, meaning gender identities should not affect how properties are divided or parental rights are allocated. However, LGBTQ spouses may have a different divorce experience than heterosexual spouses:

  1. The Length of Their Marriage May Not Reflect the Length of Their Relationship: The duration of your marriage matters during a divorce. How long you were married determines how long you can receive spousal maintenance. Spouses in a long-term marriage will have more properties that qualify as marital assets. Same-sex marriage has been legal in Illinois for only six years, and Illinois law does not grant shared property rights to couples who cohabit without marriage. LGBTQ couples may have been effectively married for decades, but only a fraction of those years officially count as marriage. Couples who entered a civil union before marriage may be able to count more years towards their marriage.
  2. There May Be Questions About Legal Parenthood: When LGBTQ couples become parents, the child is often not biologically related to both parents. Both spouses should still have equal parental rights during a divorce as long as they are both legal parents to the child. Illinois will recognize non-biological parents as legal parents if the child was born during a marriage or legally adopted. If neither of these applies in your case, you may need to prove that you have a parental bond with your child and that it would be in the best interest of the child to continue to have parenting time with you.
  3. Transgender People Can Face Social Stigmas: In some areas, the public has been slower to accept people who identify as transgender than other members of the LGBTQ community. When a person comes out as transgender to their spouse, it often leads to a divorce. Unfortunately, transgender divorcees sometimes deal with courts that are ignorant toward transgender issues. For instance, your spouse may try to argue that your transgender status should limit your parental responsibilities, even though there is no evidence that being transgender affects your parental fitness.

Contact a St. Charles, Illinois, Divorce Attorney

There are situations where LGBTQ spouses going through a divorce may need their attorneys to advocate for their rights. A Kane County divorce lawyer at Goostree Law Group is dedicated to ensuring that everyone has access to a fair divorce. To schedule a free consultation, call 630-584-4800.

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Posted on in Children

Kane County family law attorneyAlthough same-sex marriage is legal throughout the United States and Illinois law was recently amended to allow same-sex parents to become legal parents to any child born or conceived during their marriage, there are still certain issues that same-sex parents can face that do not affect heterosexual parents or, if they do affect heterosexual parents, do not affect them as widely or as profoundly. In the divorce process, same-sex couples are treated identically to heterosexual couples – or ideally, should be. Sometimes, a biased judge can make unfair rulings, requiring the couple to take time to appeal the ruling in order to receive fair treatment. If you are a parent in a same-sex relationship who is divorced, preparing to divorce, or working through another legal issue like adopting a child or modifying an established court order, discuss any specific issues you might face with your family lawyer before your proceed.

Legal Parentage of Your Children

In 2015, the Illinois Parentage Act was altered to be more inclusive of same-sex couples. Now, any child born or conceived during a couple's marriage, regardless of the couple's genders, is legally the child of both parents.

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Illinios divorce attorney, Illinois family law attorney, gay marriage, gay divorce,A Florida judge recently allowed a gay couple to divorce, even though the state did not officially recognize the couple’s right to marry in the first place. However, that might change soon. In August 2014, a federal district judge overturned Florida’s gay marriage ban. Both the Eleventh Circuit Court of Appeals and the U.S. Supreme Court refused to extend a stay on the ruling, which means that gay couples were able to marry beginning in January.

Florida’s first same-sex divorce is a harbinger for gay couples in Illinois, where gay marriage became legal in June 2014. Illinois gay couples now have the same rights as straight couples, which includes the right to divorce. Not every state permits same-sex marriage, though, so a gay couple that marries in Illinois could move somewhere that does not recognize their marriage – or their divorce.

Same-Sex Marriage and the U.S. Supreme Court

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Illinios divorce attorney, Illinois family law attorney, St. Charles family law attorney, gay marriage, On Friday, January 16, the United States Supreme Court granted certiorari in four same-sex marriage cases. The court’s decision to hear these cases is historic – soon, all Americans will have the right to marry and divorce, or they will not.

Specifically, the court agreed to consider whether states have the constitutional power to ban same-sex marriage, and whether the Constitution compels states to recognize same-sex marriages performed elsewhere. The first issue addresses equal protection under the Fourteenth Amendment, while the second issue addresses full faith and credit (e.g., states must recognize marriages legally performed in other states).

Circuit Split on Same-Sex Marriage

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Posted on in Divorce

gay divorce, Illinios family law attorney, Illinios divorce lawyerBefore Illinois permitted same-sex marriage, gay couples had the right to enter into civil unions. (Heterosexual couples, too, have this option.) Semantics and ceremonial purposes aside, there is not much difference between a marriage and a civil union in Illinois, especially since the Religious Freedom Protection and Civil Union Act took effect in 2011. That act gives civilly unioned couples the same rights under state law as married couples.

Those rights include the right to de-couple. For a married couple, it means the right to divorce. For a civilly unioned couple, it means the right of dissolution. The laws applicable to a divorce are the same as those applicable to a civil union dissolution. Thus, all couples receive the same benefits under the law when they break up, whether the break up is a marriage or a civil union. Couples in a civil union, like in a marriage, will need to resolve:

  • Disputes regarding the division of property;
  • Whether one spouse will make maintenance payments to the other spouse;
  • Child custody and visitation rights; and
  • Any other issues that arise when the union dissolves.

Establishing Grounds for Dissolution

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