The past several years have seen a tremendous increase in protections for people who were unjustly denied the right to marry for years—same-sex couples.
In Illinois, the Civil Union Act (effective June 1, 2011) and the Religious Freedom and Marriage Fairness Act (effective June 1, 2014) allowed same sex couples to avail themselves not only of the right to marry the person of their choosing, but of the same laws regarding the dissolution of their union or marriage that were previously only available to opposite sex couples.
But what about same-sex couples that opted not to wait until 2011 to have their relationship formally recognized by Illinois, and instead opted to travel to another state to enter into a Civil Union or Marriage? How does the Illinois Marriage and Dissolution of Marriage Act deal with their rights in a dissolution proceeding, particularly when considering the division of property?
Technically speaking, marital property begins to accumulate when a couple gets married. But what if their marriage was not recognized in their home state of Illinois until a date substantially after their marriage?
Let’s take a look at a hypothetical: a same-sex couple have been living together in Chicago since 2000 and hold themselves out to the public as being married. In 2006, they decide to travel to Massachusetts for a weekend to get married. They then return to Illinois. In 2015, they decide to divorce. The main issue in their divorce is what property is considered “marital,” and therefore subject to equitable division?
While several arguments can be made, the strongest two arguments are either: (1) marital property is anything acquired subsequent to their marriage in 2006, or (2) marital property is anything acquired subsequent to the state of Illinois recognizing their marriage, in 2011.
What is the correct answer? Neither. Or either.
On the one hand, the Illinois Supreme Court has determined that statutory amendments that create new substantive rights may not be applied retroactively unless explicitly designated as such. Property rights are substantive rights. Accordingly, property rights cannot be applied retroactively and can only be applied from the date the couple’s marriage was officially recognized in Illinois—June 1, 2011.
On the other hand, this author is unaware of any decisions being reached that would unequivocally decide the question, and the principles of equity seem to favor the position that if the couple was married in 2006, marital property should be anything acquired subsequent to the 2006 marriage date, as would be the case for any opposite sex couple.
While strides have undoubtedly been made in advancing the rights of same sex couples, further clarification is necessary. The fact that grey areas exist for same-sex couples only highlights the need for skilled legal representation during a dissolution process—being in a same sex relationship myself, I’m always happy to help, and I personally understand the difficulties facing same sex couples. Feel free to call me with any questions or concerns related to your family law or other legal needs.
This post was written by Aubrey J. Parker: Family Law Associate