On Property Rights for Same Sex Spouses

The past decade has seen tremendous progress in the battle for marriage equality.  State bans on same sex marriage are falling one after another, granting these families the legal recognition they were denied for too long.

On June 1, 2011, the Civil Union Act became effective and Illinois not only began granting civil unions, but also giving immediate recognition to “substantially similar legal relationship[s] . . . legally entered into in another jurisdiction.”  750 ILCS 75/60.  Three years later, on June 1, 2014 same sex marriages were fully recognized in Illinois under the Religious Freedom and Marriage Fairness Act which incorporated the same reciprocity language for marriages previously entered in other states.

The reciprocity language of the Civil Union and Marriage Fairness Acts is intriguing because many couples did not wait until Illinois recognized civil unions or same sex marriage to get married. Instead, they went to other states as early as 2002 to get their civil unions or 2004 for their marriages.

When the Illinois legislature gave recognition to out-of-state marriages and civil unions in June 2011, it did not state whether Illinois would recognize the marital property rights attendant to those marriages retroactive to the date of the parties’ marriage, or upon the effective date of the Act.  Therefore, the new law created confusion since it was entirely unclear what would happen to the support or marital property rights of a couple who married in another state before 2011, lived in Illinois throughout their marriage, and now wanted to divorce in Illinois.

Consider a hypothetical couple who lived and worked in Illinois all their lives and wanted to get married in 2004.  Since Illinois did not recognize same sex marriages, the couple flew to Massachusetts for a weekend, got married then returned home to Illinois.  Since Illinois did not recognize their marriage, the couple had no protections or responsibilities under Illinois family law.  The Illinois Marriage and Dissolution of Marriage Act (“IMDMA”), the statute which sets forth guidelines for paying support and dividing property, did not apply to them.  Moreover, because Illinois did not recognize their marriage in the first place, they could not get divorced.

So the following questions remain unanswered:

When did marital property start to accrue for this couple?

Was it in 2004 when the parties were married in Massachusetts?

Or was it 2011 when Illinois recognized their marriage?

At first blush, 2004 may seem the most logical and equitable answer. If so, however, what rights and responsibilities did the parties have between 2004 and 2011 when their marriage had no legal recognition in Illinois? The couple had no reason to protect their assets or income from spousal property and support claims during that period because Illinois did not grant them any spousal property or support rights to protect. Since their marriage was not recognized in Illinois, the couple could not have stopped the accrual of marital property during this time period. And even if the couple had wanted to protect themselves by getting a divorce, they had to legal recourse available to do so since they were not legally married under Illinois law.