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As more states legalize same-sex marriages, the legal landscape continues to evolve in the United States.  In Illinois, same-sex marriage was legalized on June 1, 2014.  The statute promises marriage equality under the law.

Converting a Civil Union to Same-Sex Marriage in Illinois

In Illinois, same-sex couples can convert a civil union to a same-sex marriage by simply completing a marriage certificate from the county clerk’s office in the county in which they obtained the civil union license.  The couple has two options when they apply:  they can enter the marriage date as of the date they entered into their civil union, or they can use the date of their marriage certificate as their date of marriage.  The couple will need to complete the certificate, sign it and return it by May 31, 2015 to avoid a fee.  After that date, a marriage license fee will apply.

Dissolution of Marriage

When a same-sex couple moves to a state where same-sex marriage is not recognized, the legal complexities begin.  First, if the couple wants to dissolve their marriage, they will have to go to a state that recognizes same-sex marriage to file for divorce.  In fact, in most states, one of the spouses will need to move to another state where same-sex marriage is legal, and fulfill the residency requirement in order to file for divorce.

For same-sex couples who marry in Illinois, the State of Illinois has decided to retain jurisdiction over civil unions and same-sex marriages even when the parties live outside of the state, if they are in a state that does not recognize their union.  Allowing access to Illinois court for dissolution of a civil union or same-sex marriage is unusual.  Normally, the statute requires that one spouse reside in Illinois for at least 90 days prior to the judgment being entered.

Illinois applies the Illinois Marriage and Dissolution of Marriage Act (IMDMA) to same-sex marriages and civil unions.  The IMDMA allows for the fairest dissolution of marital-type unions, rather than trying to apply laws that are meant for the dissolution of a business partnership, which is what couples were left with prior to the enactment of the Civil Union Act and the Religious Freedom and Marriage Fairness Act.

Income Taxes & Social Security Benefits

While many government agencies like the IRS are recognizing same-sex marriages, the Social Security Administration (SSA) is not consistent in its applications of survivor claims and spousal benefits.  However the SSA is processing spousal and surival claims in states that recognize same-sex marriage.  

SSA benefits get complicated when a spouse who is collecting benefits divorces and moves to a state that does not recognize same-sex marriage.  The spouse could potentially lose the benefits.  Legislation is now pending in Congress that would extend Social Security benefits to same-sex couples wherever they live in the United States.

Parental Rights

Same-sex couples that marry can now both receive protections afforded parents with a second-parent adoption.  For couples that are not legally married or live in a state that does not recognize same-sex marriage and they decide to divorce, the non-parent partner could lose contact with the child(ren), and the parent partner may no longer receive financial support for the child(ren) without a second-parent adoption.

A second-parent adoption also protects the child(ren) in a divorce because the parent partner and child(ren) would be entitled to financial support such as child support.  The adoption provides both spouses with legal protections, such as visitation and the right of a child to support.  While some states will allow a non-legal parent rights over a child if proof of care is provided, the second-parent adoption eliminates time in court and/or interruptions in the transition.

Tying up Loose Ends

In addition to filing for a divorce decree, divorcing same-sex couples should also be sure that they have filed to dissolve any previous civil unions or registered domestic partnerships.  All government records of the past relationships need to be updated or voided.

The Law Offices of Karen M. Lavin Associates PC, located in Crystal Lake, Illinois, can help you navigate these issues and also assist with estate planning for same-sex couples.  Call our office today and set up a free half-hour consult to learn how we can help you at 815-261-4894.