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Same-sex divorce may have special complications

While the state of Illinois legalized same-sex marriage only months before the landmark U.S. Supreme Court decision in 2015, you may have been among the many who rejoiced and celebrated when the federal government acknowledged your right to marry the person you love, no matter which state you live in.

The court's ruling gives you every right and privilege that opposite-sex couples have enjoyed for centuries, including the right to make medical decisions for your spouse, take advantage of tax benefits for married couples, and adopt and raise children as a family. The new law also gives you the right to divorce. Unfortunately, because of the long wait for legalized same-sex marriage, your divorce may have unique complications.

Legal difficulties

Like many same-sex couples, you may have found your own way of living your relationship with your partner in the years before the laws changed. Whether you legalized your bond through a domestic partnership or simply joined your lives in a private ceremony, you likely took some practical steps to solidify your union, for example:

  • You may have purchased property together.
  • You likely accumulated possessions, such as furniture, motor vehicles or works of art.
  • Perhaps you opened joint bank accounts and credit cards.
  • You or your partner may have adopted a child whom you raised together and who thinks of you as a parent.

Perhaps you and your partner lived as spouses for decades before the state permitted you to marry. It is those years of comingling of property and income that complicate your divorce. In reality, you may have spent many years as spouses, but the law did not recognize your union until the court legalized same-sex marriage. This means divorce decisions related to marital property, alimony or child support may be based on those few years and not include the time you cohabitated prior to 2015.

Additionally, if you did not take the steps for adopting your spouse's child, the court may decide you have no legal right to custody or visitation. You and your spouse may have an amicable relationship that will allow you to reach some of these decisions through mediation or other forms of alternative dispute resolution. Whether or not this is the case, you will benefit from the strong legal representation of an attorney who is experienced in handling the unique issues of same-sex divorce.

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