Attorney: Same-Sex Divorce Raises Questions

The start of same-sex marriages in Illinois next year could create some challenges for those seeking to end them later.

A Chicago attorney who specializes in family law and matrimony says the divorce itself shouldn’t be difficult, but it’s not clear what that means to dividing property or parental rights.

Leon Finkel says a strict interpretation of the marriage act shows that efforts before a couple tying the knot don’t count, but said that statute could be applied differently for couples who couldn’t legally marry over several years, but had a similar relationship over that time.

Finkel cites home ownership as an example, and what would happen if both spouses contributed to an investment account before the wedding – but didn’t put any funds in afterwards.

"And the question is, that account that was owned by one spouse before the marriage would generally be considered a non-marital asset," he said.  "And here, we have situation where someone would suggest, "Wait a second, I had rights to that account because I contributed to that account.  And that might be a very difficult argument to make."

Finkel advises any same-sex couples raising a child to be sure and go through a legal adoption through children, giving them the proper agreement that recognize parental rights.

In traditional marriages, he said it’s been up to parent to prove they’re biologically related - or not related - to a child or children. 

For same-sex couples, Finkel said  both spouses should be sure to seek legal standing if they want custody of a child in the event of a divorce.

“Make sure that you ratify your understanding through a legal adoption," he said.  "It takes all the ambiguity out of it, all the uncertainty.  Now with marriage, there’s less need for that, but I would be conservative in my advice, and ask the people actually go through that adoption in addition to having an agreement.”

Finkel’s prior cases include the split of a same-sex female couple 10 years ago, in which the non-biological parent wasn’t granted visitation rights because the two weren’t legally bound, and didn’t go through an adoption process.     

Same-sex ceremonies start in Illinois June 1st.  

Finkel said it’s also up in the air whether other states, such as Texas, that don’t allow same-sex marriage will recognize marriages from other states.  But he said the marriages should help parents who have adopted in other states.