What Issues Do LGBTQ Spouses Face in Divorce?

 Posted on June 12, 2020 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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