Nov 20, 2013

Marriage Equality and Divorce Equality Reach Illinois

Erika Wyatt

On November 20, 2013, Illinois Governor Pat Quinn signed into law the Religious Freedom and Marriage Fairness Act, which will make same-sex marriage legal in Illinois as of June 1, 2014.

At this time, fourteen states, the District of Columbia, eight counties in New Mexico and eight Native American tribal jurisdictions issue marriage licenses to same-sex couples. Hawaii will follow suit as of December 2, 2013, and Illinois in June 2014.

On June 26, 2013, the U.S. Supreme Court, in Windsor v. United States, held that Section 3 of the 1996 Defense of Marriage Act (DOMA) which defined marriage as being the union of one man and one woman, was an unconstitutional violation of the Fifth Amendment.

Outside of the US, as of August 2013, approximately fifteen countries (Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, Uruguay) as well as parts of Mexico allow same sex marriage.

In spite of its slow march forward, the battle for marriage equality continues to meet strong opposition, and it continues to be fought in courts as well as legislatures nationwide. Among these are the following:

  • McGee v. Cole is pending in the US District Court for the Southern District of West Virginia, challenging West Virginia’s prohibition on same-sex marriage.
  • In re Marriage of J.B. and H.B and State v. Naylor both are pending before the Texas Supreme Court, in two separate cases with same-sex couples who were married in other jurisdictions seeking to avail themselves of Texas’s state divorce statute.
  • In Virginia, Bostic v. Rainey is pending before the U.S. District Court for the Eastern District of Virginia, and Harris et al. v. McDonnell et al. is pending before the U.S. District Court for the Western District of Virginia, both challenging Virginia’s prohibition on same-sex marriage.
  • Sevcik v. Sandoval is pending before the U.S. District Court for the District of Nevada, challenging the denial of same-sex marriage by the Nevada Constitution and Nevada statute.

One thing is clear and that is that same-sex marriage is on the rise and it is here to stay. With marriage equality comes divorce equality (in the states that allow same-sex divorce), and with divorce equality comes a myriad of legal entanglements that do not confront heterosexual couples.

For example, imagine that Sally and Jane married in Massachusetts in 2004. In 2006, they moved to Illinois, which did not recognize their marriage. In 2007, they split up. Since Massachusetts no longer had jurisdiction, and Illinois did not recognize their marriage, they divided their things and separated. In 2009, Sally met and married Bob. In May 2011, Bob filed for divorce from Sally. Then June of 2011 rolled around and Illinois recognized civil unions, including marriages and civil unions into which parties entered in other states. On June 2, 2011, Jane filed for a dissolution of her civil union to Sally. Making things even more interesting, on June 3, 2011, Sally won $300 million in the Powerball. Who is married to whom? What is the marital estate? Who gets to share in that Powerball?

These, and many other issues will uniquely affect same-sex marriage partners for some time to come. LGBT persons seeking to enter into a marriage or civil union, as well as those seeking to dissolve a marriage or civil union, need to seek competent counsel early in the matter to help navigate these turbulent waters and to have a clear understanding of how intertwining state and federal law may affect their cases and their lives.

As Governor Quinn tweeted on November 6, 2013, when he learned that SB 10 had passed the Illinois House, “Illinois is a place that embraces all people and today we are an example for the nation.” As of June 1, 2014, marriage equality, and its ugly twin, divorce equality, will have reached Illinois.

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