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Relationships & the Law Today: Divorce considerations following marriage
by Jillian B. Steinberg

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Following the U.S. Supreme Court's decision in Obergefell v. Hodges, marriage, which once seemed out of reach for same-sex couples, is now an attainable for all who seek it.

With marriage, however, comes the inevitable potential for divorce, with the U.S. Census reporting recently that nearly half of all marriages certified in this country end in dissolution. Therefore, although the initiation of most marriages is cause for excitement and an eye toward a joint future, Illinois couples should remain cognizant of Illinois divorce proceedings and the considerations that should be contemplated in light thereof.

In Illinois, both same-sex and heterosexual marriages follow the same divorce proceedings ( 750 ILCS 5/401 ) and are subject to the same rights and obligations. An Illinois marriage can only be dissolved by an Illinois state court order, or a "judgment of dissolution of marriage," such that the legal relationship between the couple is terminated. In order to obtain a judgment of dissolution of marriage, the couple must file a petition for a dissolution of marriage. Whereas previously, Illinois required a couple to differentiate between either "no-fault" and "fault" grounds on the petition, Illinois now recognizes only marriages filed under "irreconcilable differences." The parties must be separated for at least six months and the court must determine that the couple's efforts at reconciliation have failed.

One of the most challenging aspects surrounding divorce is determining the distribution of a couple's property and the extent of spousal support or "maintenance," if any, and if the couple has children, the extent of parental responsibilities. As to the distribution of property, Illinois is considered an "equitable distribution state," which means that the court will divide marital property between two spouses fairly, but not always equally. When determining appropriate distributions, a court will typically consider the duration of the marriage, the economic circumstances of each spouse, and the value of the property assigned to each spouse, amongst other factors. The court will similarly distribute any marital debts.

One important consideration unique to the LGBTQ community is that, because same-sex couples have only recently obtained the right to marry, many same-sex couples are getting married later in life, having already acquired significant property prior to getting married.

Under Illinois law, property accumulated prior to marriage is considered "separate property," whereas property accumulated by the couple after marriage is considered "marital property." Because of how marital property will be fairly distributed following divorce, same-sex couples who get married later in life should be particularly cognizant of how and to what extent one spouse has accumulated separate property prior to the marriage, and the extent to which the other spouse relies on that property during the marriage, keeping in mind that depending on the shared usage or comingling of the property, it could become a marital asset, and might be subject to fair distribution following dissolution of the marriage.

Such circumstances can often cause concern where a court of law is left to determine the distribution of a couple's property. Thus, although a court often will determine the distribution of a couple's assets when necessary, couples often can and do choose to execute marital settlement agreements so that they can privately control the distribution of their assets, the extent of spousal or child support, and/or their parental responsibility arrangements. In those cases, the parties can freely negotiate the divorce arrangement based upon their own perceived best interests.

Nevertheless, because dissolution proceedings in Illinois must be initiated and pursued through the legal system, if a couple is faced with the prospect of divorce, each individual may require separate legal representation. An individual can choose to represent him or herself, but due to the complicated legal framework surrounding the dissolution of any marriage and the sometimes emotionally strained relationships between the parties, an experienced attorney can often best ensure that the individual's interests will be well-protected and well-represented throughout the dissolution proceedings. If you are interested in pursuing or learning about divorce in Illinois, consult with an experienced family attorney in your area.

Jillian B. Steinberg is an Associate in the Litigation Practice Group at Clark Hill PLC. Jillian helps individuals, families, and closely held businesses plan for and resolve difficult business decisions and transfers of wealth.

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