When marriage equality took effect across Illinois last year, there were those who jubilantly rushed to the courthouse to finally have their love validated by the state. There is cautious optimism that by the end of its 2015 session, the United States Supreme Court will have ushered in scenes similar to those that took place at the Daley Center on February 21, 2014 with couples waiting in line for their marriage licensebut at clerk's offices across the country.
However there is another reason some same-sex couples will visit their local courthouse once marriage sets in as a nationwide reality. For many of them, the day will be just as emotional and monumental.
But they will not be pledging unbreakable vows of eternal love to each other. They will be litigating and receiving judgment on how they will spend their lives forever apart.
The reality that same-sex divorce walks hand-in-hand with same-sex marriage is one that a 2014 article in The Washington Post noted "given the evidence available, the dissolution rate of same-sex marriages seems comparable to, not lower than, the divorce rate of traditional marriages."
The end of a marriage can often come as a shock to at least one if not both of the parties involved. With rage, disillusionment and guilt only beginning to set in many will contact attorneys for initial consultations plying their prospective advocate with questions including division of property, custody, finances and a host of others. Same-sex couples want to know if they can expect equality in divorce.
Michael Gauthier is an attorney at the law firm of Gauthier & Gooch based in Chicago and Wauconda. "The law applies equally to straight couples and the LGBT community," he said. "The problem is the fear of going into the process. You have folks who have been together in committed relationships for decades that for the first time are experiencing marriage which is fantastic but they are also experiencing the other side which is divorce. At this point the courts don't care whether you're straight, gay, bisexual, lesbian or transgender. The clients are in a different position because they haven't experienced it yet through the course of their life. They don't know how things are going to play out."
For a divorcing same-sex couple, concern about how property is to be divided takes on a significant role. Gail M. O'Connor is the proprietor of O'Connor Family Law, P.C. She has been practicing since 1996. "They are more likely to have more non-marital property at issue," she told Windy City Times. "There are people who have cohabited for longer but there are concerns about 'what is mine verses what is ours?'"
In a divorce non-marital property "is property you owned before the marriage," O'Connor explained. "You didn't put [your spouse's] name on it or you acquired it during the marriage by way of a gift, an inheritance or as an exchange for property which you owned prior to the marriage."
Marital property is anything bought or acquired by each spouse from the day they were married to the day the judge signs a divorce decree. O'Connor stressed that even if the couple separates and lives apart long before a judgment is signed, anything obtained by either spouse during the separation is still considered marital property. "Sometimes people want to drag out the divorce for whatever reason," she said. "If you're accruing pension benefits, a 401K or you're paying down a mortgage your spouse is going to get fifty percent of that."
No matter how embittered the couple may be towards each other and so determined to engage in a War of the Roses with their estranged partner over everything from a home to a chipped coffee mug, the attorneys Windy City Times spoke to unanimously said they would prefer their clients think hard before deciding that they will not negotiate or agree to a settlement with their spouse before the case ever comes to court. Litigation is an expensive proposition.
"Even though we tend to get a bad press, most of us care about our clients and most of us do what's right," Gauthier said. "Make no mistake, divorce is a tragedy and different people respond to tragedy in different ways. People who want to go to war are entitled to their day in court but it's the job of an attorney to explain the consequences and I always ask my clients 'is the juice worth the squeeze?' If you want to take your spouse to the cleaners and rain down hell on the person who has wronged you, do you really want to spend the time, money and effort to get that resolved or save your money and your emotions?"
Sandra Crawford, J.D. is a mediator and collaborative law professional. The firm Law Crawford, P.C. has specialized in mediation and collaboration between divorcing couples for a decade. "The contract you had 'till death do us part, we're going to live happily ever after' is no longer working when you're at the point in time of deciding to separate," she said. "The contract is broken. You need to negotiate your future especially if there are children in the picture be that through adoption or In Vitro Fertilization, if you have property together, a dog you are going to need a plan of action so that you can go into the future with order and some sense of control."
She added that most judges are happier when cases are resolved by way of documents such as a Marital Settlement Agreement before they are ever seen in their courtrooms "If a client shows up at a first interview saying 'I want to get the bastard, I want everything' and so on then we need to [understand] needs and interests," Crawford said. "Tell me something about why you want this thing so badly. People come in with two basic questions: 'how much is this going to cost me? When can you stop the pain?' Divorce is a conclusion. How you get there is a matter of choice."
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