Divorce is the last thing you think about when you and your spouse are exchanging vows. However, for different reasons, divorce happens. When it comes to divorce and child custody cases involving same-sex couples, there are many factors that can complicate the court’s ruling.
Along with the right to marry in Illinois (and every state in America), marriage equality laws also gave couples the right to divorce, regardless of where they live. But, in some cases, the divorce process can become complex.
Because same-sex marriage hasn’t been legal for too long, courts have broad discretion when making decisions about relationships that were in place long before the Supreme Court’s landmark decision. One of the biggest issues same-sex couples run into when they get divorced is determining how to award spousal and child support if the couple was living together as domestic partners much longer than their legal marriage. Same-sex couples often see one spouse adopt children and then they live as a family, without the benefit of a joint- or cross- or co-adoption. That could spell disaster for the non-adopting parent.
Parental responsibilities are different for someone married to a child’s birth mother. The law spells out how the birth mother’s spouse can be the legal parent of the child. For two married men, adoption is often the route to parentage, for married women, the female who did not give birth also usually adopts the child/children.
Since 2016, instead of dividing up “custody” and “visitation,” divorcing parents make an “allocation of parental responsibilities.” Under the revised Marriage and Dissolution of Marriage Act, only non-parents get visitation.
You must be a parent to have any parental responsibilities. Who’s a parent is determined by the Illinois Parentage Act. The Parentage Act spells out 4 ways the spouse of the birth mother can be legally presumed to be the child’s parent. The law below applies to both marriages and civil unions. It also applies to a male or female spouse of the birth mother. The four paths to parenthood are:
- The child is born while the spouses are married to each other.
- The child is born after the marriage is over. It must be within 300 days after that termination.
- The first 2 situations, but where the couple tried to enter into a marriage or civil union “in apparent compliance with the law.” However, that marriage or union is later terminated or declared invalid for some reason.
- A person marries the birth mother after the child is born. Plus, that person consents to being added to the child’s birth certificate.
Parenthood for two married men results from one being the child’s biological father, and the other adopting the child,. Or, it results from both spouses adopting a child together.
Same-Sex Divorce Procedure
Generally – asides from the issue of Child Custody (Parenting Time) – the divorce process for same-sex couples is not different compared to a divorce involving a heterosexual couple.
- File the Petition for ‘Dissolution of Marriage’. To properly file in Illinois, one or both parties must establish residency within the state for at least 90 days before commencement of the case. The petition must state whether the divorce action is sought on fault or no-fault grounds. (Contested or Uncontested).
- Serve the complaint on the other spouse.
- The other spouse files an answer to the petition or risks a default judgment from the court.
- The investigation and negotiation stage occurs, where the couple’s attorneys gather relevant evidence and prepare for a court appearance. The couple may also work toward a mutually-agreeable settlement through divorce mediation.
- A trial commences if no settlement is reached. At this stage, the divorce is granted, and the court determines issues like custody, child support, spousal maintenance and the division of the couple’s property.
Hiring the Right Experienced Same-Sex Divorce Attorney
If you are going through a same-sex divorce, you probably have many questions about the process.
By hiring a knowledgeable and experienced divorce attorney – who understands the unique challenges same-sex couples face – will ensure that your interests are protected during the dissolution of your marriage. How? Since it is possible to encounter judges or other court personnel who may have had limited interactions with same-sex divorces or same-sex individuals in general, it is important to have an attorney who is not only sensitive to the dynamic, but one who is well known by the Court and knowledgeable of the various laws.
Masters Law Group understands that divorce is a stressful situation and that our clients want to move on with their lives. As such, we move through settlement negotiations, mediation or litigation with our clients assurance and well being in mind.
Whether you are facing a same-sex contested divorce, uncontested divorce, or civil union divorce, our firm’s attorneys are ready to skillfully advocate for your position and provide your voice when you need it most.
Divorce cases involving substantial assets or complex estates require specialized knowledge. Masters Law Group is skilled at identifying and valuing assets and wealth, including real estate, securities, business interests, retirement funds, pension plans, tax shelters (domestic and foreign), overseas accounts, stock options, trusts and other actual or potential sources of wealth.
Don’t go it alone. Contact us here today to schedule a consultation.