How Can Same-Sex Couples Protect Themselves During Marriage and Divorce?

 Posted on November 30, 2021 in Divorce

Over the past decade, the LGBTQ+ community has experienced significant benefits as state and federal laws have recognized their rights. Since 2015, same-sex couples have been able to be legally married in every state in the U.S., and this has not only allowed them to establish long-term relationships, but it has also provided them with the benefits and legal protections that come with marriage. While LGBTQ couples now have the same rights as opposite-sex couples, they may need to address some unique legal issues prior to getting married, during their marriage, and in the event of a breakup or divorce. To protect their rights and interests, couples may want to consult with an attorney to address matters related to same-sex marriage and divorce.

At Weiss-Kunz & Oliver, LLC, we believe in protecting the rights of our clients, regardless of their sexual orientation, gender identity, family relationships, or any other concerns that may affect a family law case. We work to help our clients understand the steps they can take to protect themselves as they prepare to get married, and we provide strong and effective representation during the divorce process. We work to ensure that same-sex spouses will be able to address the legal issues that may affect them and resolve disputes related to their property, their finances, and the custody of their children.

Addressing Property Rights for Same-Sex Couples

Since same-sex spouses have the same rights as opposite-sex spouses, Illinois laws regarding property division will apply if a couple chooses to get a divorce. All property that was acquired during a couple’s marriage will be considered marital property, and these assets will need to be divided between the spouses during the divorce process.

Property that same-sex couples may need to address during their divorce may include:

• Real estate - If a couple owns a home together, they will need to decide who will maintain ownership of the home going forward. In some cases, a home may be sold during the divorce process, and any profits earned from the sale may be divided between the spouses. In other cases, one spouse may continue to own the home, and they will need to remove the other spouse’s name from the home’s title and refinance the mortgage as a sole borrower. When one spouse maintains sole ownership of a home, the other spouse will usually receive other types of assets that are of a similar value.

• Financial assets - A couple may have money in joint bank accounts, and these funds may be divided equally between spouses, or one spouse may receive a larger share of funds while the other spouse receives other marital assets. In some cases, spouses may maintain separate accounts; however, the funds added to these accounts during a couple’s marriage will be considered marital property in most cases. Exceptions may include money received in exchange for non-marital property or money received as an inheritance. 

• Business assets - If either spouse is a business owner, their business will generally be considered a marital asset if it was founded or acquired while the couple was married. During the divorce process, a business valuation may be performed to ensure that the spouses fully understand the value of business assets. They can then determine how to handle ownership of the business. Options may include selling the business and dividing the profits between the spouses, having one spouse maintain sole ownership by buying out the other spouse’s share of the business, or continuing to co-own the business together following the couple’s divorce.

• Retirement accounts - Money saved in accounts such as 401Ks or IRAs during a couple’s marriage will be considered marital property, and these funds may need to be divided between the spouses. Pension benefits earned while a couple was married will also be considered a marital asset, and a person may be entitled to a percentage of the benefits their former spouse receives following their retirement. To divide retirement accounts and pensions, spouses can use a qualified domestic relations order (QDRO), which will ensure that penalties and taxes will not apply to withdrawals made prior to a person’s retirement.

• Household items - A couple will likely own multiple types of property that they keep in their home, such as furniture, kitchen utensils, appliances, artwork, and tools. Determining how to divide these assets can sometimes be difficult, since each spouse may have emotional attachments to certain items. In some cases, appraisals may need to be performed to determine the value of different pieces of property and ensure that all assets can be divided fairly.

• Vehicles - In addition to cars or trucks that a couple owns, ownership of other types of vehicles may also need to be addressed, including boats, ATVs, or motorcycles. While each spouse may maintain ownership of the vehicle that they regularly drive, differences in value between each spouse’s vehicle may need to be addressed. If one spouse’s vehicle is fully paid off, while loan payments are owed on the other spouse’s vehicle, a couple may allocate other assets in a way that ensures that each spouse receives a fair and equitable share of the marital estate.

In some cases, addressing ownership of assets may be a more complex process for same-sex spouses. Couples who have been together for a long period of time may own a variety of assets that they acquired before they were able to be legally married. However, even if a couple lived together in a relationship that was functionally the same as a marriage, the assets they acquired during that time will not be considered marital property. 

Determining how to handle ownership of non-marital assets may not always be easy. In general, assets that were acquired by one party or titled in one party’s name prior to getting married will remain the property of that spouse if the couple ends their relationship. However, non-marital assets may become commingled with marital property, such as by transferring funds from a separate bank account to a joint bank account. If it is difficult or impossible to determine which assets are marital or non-marital, separately owned assets may be converted to marital property and divided during the divorce process.

A couple may also need to address an increase in value of non-marital assets that occurred during their marriage. In some cases, these increases may be considered marital property, or one spouse may be reimbursed for their contributions to the increase in value of assets owned by the other spouse. For example, if one spouse owned a business before getting married, and the other spouse worked at the business during the couple’s marriage and helped it grow and increase revenue and profits, the spouse who owns the business may be required to repay the other spouse for the effort they put toward increasing the value of their non-marital assets.

Spousal Support for Same-Sex Couples

As legally-married spouses, same-sex couples may need to address issues related to spousal maintenance during their divorce. This type of support may be awarded in cases where one spouse earns a lower income or relies on the other spouse to provide for their financial needs. When determining whether spousal support is appropriate, multiple factors may be considered, including each spouse’s ongoing needs, the income earned by each party, the standard of living during the couple’s marriage, any impairments to a spouse’s income-earning capacity because they chose to focus on household responsibilities rather than their career, and any contributions one spouse made to help the other spouse advance their career or increase their income.

One issue that may affect spousal support in a same-sex couple’s divorce is the length of their marriage. The amount of time that spousal maintenance will be paid will be based on how long the couple was married. For couples who have been together for many years, but were not legally married until recently, the duration of spousal support may be based on the amount of time they were legally married, rather than the total length of their relationship.

Protecting Rights to Property and Support

Same-sex spouses who are concerned about their rights in the event of divorce may take steps to address this issue either before or after they get married. A couple may choose to create a prenuptial or postnuptial agreement that details how certain matters will be handled if they decide to get a divorce in the future. These agreements may help avoid disputes over property division by specifying whether certain assets are considered marital or non-marital property, and a couple may also make decisions about how different types of property will be divided. A prenup or postnup can also address spousal support by deciding whether support will be paid in the event of divorce and specifying the amount that will be paid and the length of time that payments will last.

Child Custody Issues for Same-Sex Parents

Matters related to child custody may also be a significant concern for same-sex couples. Under the parentage laws in Illinois, when a child is born to a parent, that parent’s spouse is also considered to be the child’s legal parent. When a same-sex couple are both the legal parents of a child, they will be able to share in the allocation of parental responsibilities, and each parent will have the right to reasonable amounts of parenting time with the child. Both parents will also have the obligation to provide financial support for their child and make sure the child’s ongoing needs are being met. These rights and obligations will also apply in cases where same-sex couples adopt a child together.

Child custody issues can become more complicated in cases where a child was born or adopted before a couple was legally married. If only one partner is the child’s legal parent, the other partner may not have the right to share parental responsibilities or have parenting time, even if they have acted in the role of a child’s parent for most of the child’s life. To prevent these types of issues, same-sex couples may want to complete a step-parent adoption to ensure that both partners will be considered the child’s legal parents. In these types of adoptions, one or both of a child’s biological parents will need to voluntarily terminate their parental rights. 

Contact Our DuPage County Same-Sex Divorce Lawyers

Even though same-sex couples who are legally married have the same rights as opposite-sex spouses, they may encounter a variety of unique and complicated legal issues when they choose to end their relationship. Same-sex spouses can make sure their rights regarding property, financial support, and child custody will be protected by working with an attorney who has experience addressing these types of issues. The law firm of Weiss-Kunz & Oliver, LLC works with spouses to determine how they can protect their rights in a same-sex relationship or in the event of a breakup or divorce. To learn how we can help same-sex spouses address their legal concerns, contact our Elmhurst LGBTQ family law attorneys at 312-605-4041.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59

https://www.isba.org/barnews/2016/08/18/supreme-court-overturns-appellate-blumenthal-v-brewer