What Issues Do Same-Sex Couples Face During Divorce?

DuPage County same-sex divorce lawyerWhen a couple makes the decision to get divorced, one of the most difficult parts of the process is often the division of property and assets. While the divorce process for same-sex couples may be very similar to heterosexual couples, a same-sex couple will face unique challenges. Both types of couples are covered under the same property division laws in Illinois, but there are aspects that can make property division unique when it comes to a same-sex couple, and these couples may face a variety of other legal and personal issues when ending their marriage.

Illinois Property Division Laws

When a couple divorces, whether heterosexual or same-sex, their marital assets and individual assets will be divided. The Illinois Marriage and Dissolution of Marriage Act states that marital property is any asset that was obtained by either one of the spouses after the marriage was finalized. Non-marital property includes the following:

  • Gifts that were acquired via an inheritance
  • Assets that were obtained before the marriage
  • Assets that one spouse acquired after a decree of legal separation was ordered
  • Any property or assets that have been excluded in a postnuptial or premarital agreement

When marital property is divided, the court will take into consideration a variety of factors, including the amount that each party contributed to increasing or maintaining the value of marital assets, the economic circumstances of both parties, and the length of the marriage.

Unique Challenges for Same-Sex Couples

Although a same-sex couple faces the same laws for property division as a heterosexual couple, they will almost always face unique challenges. For example, many same-sex couples may choose to live together for significant periods of time before getting married, which can complicate the determination of what constitutes non-marital property upon divorce.

In addition, there are unique emotional challenges that a same-sex couple faces during a divorce, including the property division process. The American Psychology Association says that homosexual individuals may not have a strong support system when their marriage ends. This is because their co-workers, friends, and family members may not view a divorce in a same-sex marriage in the same way as a divorce that happens between heterosexual couples. This may make the partners in a same-sex divorce feel isolated and alone.

The allocation of parenting time and parental responsibility (formerly known as child custody) is another area that can be complex for a same-sex couple, especially if one parent is a child’s biological parent, and their partner has not legally adopted the child. In Illinois, a doctrine of equitable adoption is not recognized in child custody cases. This means that unless the non-biological parent has legally adopted the child, they will not be considered the child’s parent when it comes time for divorce.

Contact an Experienced Naperville Family Law Attorney Today

If you are facing the end of your marriage, it is likely you have questions about how the process works and how it will affect you both now and in the future. The dedicated DuPage County divorce lawyers at Momkus LLC will gladly answer your questions and help you through the process with as little stress as possible. Contact us today at 630-434-0400 to schedule a consultation.




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