Things to Consider in Same-Sex Marriage

In the state of Illinois, same-sex marriage has been legally recognized since November 20, 2013, followed by the U.S. Supreme Court’s affirmation of the right to marry in 2015. This decision has allowed thousands of couples to have their commitment to one another legally recognized, which also means they have the legal right to get a divorce.

When it comes to marriage, same-sex couples have the same rights as non-same-sex couples; however, there are a few additional challenges they may face when moving through the divorce process.

Maintenance

As I mentioned above, the state of Illinois has recognized same-sex marriage since 2013; however, many couples have been in a committed relationship long before they were legally recognized by the state. Illinois courts date their maintenance decisions from the start date of the legal marriage, not the relationship. Knowing that the length of one’s marriage is often a factor when awarding maintenance, many couples choose to create post-nuptial agreement that reflect

the date their relationship started, not the date of their wedding.

Child Visitation

When minor children are involved, there are always questions about support and visitation schedules during the divorce process. If same-sex couples have not taken the necessary legal steps to ensure that BOTH parents have full parental rights, the process becomes more challenging. Parents are encouraged to draft a parenting plan that clearly outlines their intentions and obligations when it comes to raising children. In addition, it is critical you meet with an experienced lawyer to help you navigate this part of the process.

Dividing Property

As with the challenges faced when discussing maintenance, the date of the actual marriage may create an unfair property settlement. For example, if one spouse bought property before the legal marriage date it may be considered individual property and not considered in the marital property division. Because property division is based on a judge’s discretion, some may take into consideration the years of cohabitation. But there are no guarantees that you will walk away with anything your spouse purchased before your wedding.

There are so many things to celebrate regarding the Supreme Court’s decision back in 2015, but we also need to recognize that there is much legal work to be done when it comes to same-sex marriages. Being aware of the challenges many couples face will help ease the divorce process for all involved.