The first steps of protecting LGBTQ+ federal benefits came with United States v. Windsor in 2013, which declared that the Defense of Marriage Act (DOMA) violated the 5th amendment. This determined that the government cannot discriminate against LGBTQ+ couples when determining federal benefits and protections, paving the way for Obergefell v. Hodges. Passed in 2015, Obergefell v. Hodges determined that states’ banning same-sex marriage carried out in other states are unconstitutional, violating the 14th amendment. Both of these Supreme Court cases were extremely important for protecting LGBTQ+ couples in marriage and divorce.
While these cases reflect federal protection, Illinois was ahead of the time by passing the 2013 Religious Freedom and Marriage Act that ensured that all married parties have access to the same benefits, protections and responsibilities under the law in Illinois (750 ILCS 80/10). While the passing of this bill, and the legalization of same-sex marriage in Illinois and federally was a significant step towards equality, same-sex couples still encounter some distinctive issues when navigating divorce. The legal landscape and societal attitudes are still evolving.
Same-sex couples considering divorce should be aware of the legal ambiguities and personal challenges that can arise during divorce proceedings, including the following:
1. Difficulties with the division of assets
Statistically, same-sex couples enter into marriage 3 to 5 years older than heterosexual couples. This can mean that many couples may have acquired significant assets before marriage. Courts may struggle to determine what they should consider marital property and what remains separate. In anticipation of these struggles, one should consider a pre-marital or post-nuptial agreement.
2. Gray Area with Retirement Benefits
Just as dividing assets can be difficult, there are some uncertainties with Employer sponsored retirement benefits in the years prior to United States v. Windsor and Obergefell v. Hodges. Many companies are required to follow ERISA (Employee Retirement Income Security Act), unless the plans are state/federal government sponsored or a church organization. Prior to United States v. Windsor, ERISA was not required to protect same-sex couples as it followed DOMA which only protected the marriage between a man and women. It was only after United States v. Windsor that ERISA was modified to include same-sex marriages. Thus, for any couple in a state that legalized same-sex marriages prior to U.S. v. Windsor, there could be uncertainty over how plans handle retirement benefits for any years where the marriage was legally recognized on a state level, but not Federally. There could be even greater uncertainty for companies that don’t follow ERISA, where the decisions are entirely up to the plan (and the plan may still not recognize same sex marriage.)
3. Complexities with custody battles
If same-sex couples have used assisted reproductive technology or adoption to build their family, it can be a challenge to determine parental rights and responsibilities. Child custody and visitation arrangements may not be as straightforward if neither spouse is biologically related to their children or if the parties were nonchalant about listing both parents on a birth certificate. Different states have different laws surrounding birth certificates and same-sex parents. While some allow for both parents to be listed, others may require a court order or post-birth adoption process. Moreover, some states have restrictions depending on marriage status, meaning that same-sex couples not married at the time of adoption may not have been allowed to put their names on documentation but rather the names of the birth parents. These scenarios can complicate custody battles.
4. Discrimination from peers
Discrimination can still be a concern for same-sex couples during a divorce. They may encounter bias or insensitivity from some professionals, family members or even within the court system. It is important to work with professionals who are sensitive to these issues and honor that all families do not look the same.
5. Loss of support systems
Many same-sex couples rely on close-knit support systems within the LGBTQ+ community. Divorce can strain these relationships. Individuals may need to seek out support from counselors or mental health professionals.
Although there has been legal and societal progress toward equity for the LGBTQ+ community, same-sex couples may still need to be vigilant and proactive to receive the same rights, respect and support as their heterosexual counterparts when it comes to divorce proceedings. Our firm is experienced in the nuances involved in same-sex divorce/ dissolutions and committed to easing these challenges with minimal stress involved. If you are struggling with any of these challenges and need support, we are here to help.
Emma Zurek, Law Clerk
Anne Prenner Schmidt, Esq.