Same-Sex Divorce in Illinois

Same-Sex Divorce
in Illinois

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Same-sex marriages in Illinois were legally recognized on June 1, 2014, allowing same-sex couples to apply for licenses to be married after a waiting period of one day. As a result, the ruling, legalized a same-sex divorce in Illinois and bound the state judges to recognize and grant a gay divorce under equal conditions for all residents, disregarding their sexual orientation.

Marriage dissolution procedure and related matters such as property division, alimony, child custody, and support, are explained in Illinois Compiled Statutes. Couples that entered a civil union are entitled to the same rights as the spouses married officially under the Illinois law. But this type of union might not be recognized elsewhere. As for a common-law marriage, it is not valid in Illinois.

Same-sex divorce online

Same Sex Divorce

Any person married to a same-sex partner can get a divorce in Illinois with the help of inexpensive online services and without a lawyer. There are specific requirements, however. A same-sex couple can file for divorce in Illinois in the county of residence of one of the spouses. He or she must have lived in Illinois for at least 90 days before filing. Besides, a couple must have an uncontested divorce to apply for divorce over the Internet.

Do-it-yourself marriage dissolution is more affordable than the traditional way of hiring a lawyer. For example, the website helps clients with same-sex divorce paperwork in Illinois and provides all required printable documents at a modest price of $139.

Same-sex divorce papers in Illinois

A divorce process in Illinois for same-sex couples include submission of particular documents to the court. Although they can vary depending on each case’s circumstances, a petition for dissolution of marriage is a standard document for everyone. It has several sections that a Petitioner has to fill in with corresponding information.

You can obtain necessary same-sex divorce forms in Illinois either by yourself or online. The latter is a quick and easy option for those who value their time and are not sure if they can gather correct information on their own. After all same-sex divorce papers are prepared and signed, they must be filed with the court in a county of residence in Illinois.

Valid grounds for same-sex divorce in Illinois

In a same-sex marriage, spouses can file for divorce in Illinois if at least one of them meets the state’s residency requirements. Under Illinois law, a person filing for divorce has to provide grounds for the action. In 2016, fault-based grounds for marriage dissolution were abolished to lessen the conflict between the spouses. Now any person can get a same-sex divorce in Illinois based on an irretrievable breakdown of the marriage, which is the only no-fault cause available at the moment (Illinois Compiled Statutes, 750 ILCS 5/401). A final decree can be obtained if the spouses have lived separately for at least six months, and the court decides that there is no possibility of reconciliation.

Custody of the Child

Custody of the child

Family law in Illinois requires that in order to have jurisdiction over a child, he or she must have lived in the state for six months. Both parents, no matter their gender, have equal rights to be awarded custody, which can be legal or physical. Illinois courts generally believe that joint legal custody is in the best interest of a child.

When deciding the issue of an appropriate custody type and who to award it to, a judge will consider the several important factors (Illinois Compiled Statutes, 750 ILCS 5/602.7):

  • the wishes of parents about custody;
  • the children’s wishes if they are mature and capable of making reasonable decisions;
  • any prior agreements between parties concerning parenting responsibilities;
  • the relationship of children with their parents and siblings;
  • whether one of the parents was charged with child abuse;
  • the child’s needs;
  • mental and physical health of all parties;
  • history of violence;
  • the ability of each parent to facilitate regular contact of the child with another parent;
  • other factors.

Illinois Supreme Court requires that both parents attend a parenting class to receive training on how to help their children manage the stress of marriage dissolution.

Child Support

In a marriage dissolution proceedings, a court may order one or both parents to pay a reasonable amount of financial support to their minor children. Payments shall continue for a child who is:

  • under 18 years;
  • under 19 years and still in high school.

Illinois courts calculate the amount of child support according to the established guidelines based on combined net income of both parents and the number of children (Illinois Compiled Statutes, 750 ILCS 5/505 (1.5)).

If the judge finds that the guidelines give inadequate result, he or she will determine child support individually for each case, considering the following factors:

  • the child’s needs and financial resources;
  • the parents’ needs and their financial resources;
  • the standard of living during the marriage;
  • educational needs children and their physical and emotional conditions.

The court may add healthcare and school expenses in a reasonable amount to the standard sum of support.

Spousal Support

In a marriage dissolution process, one of the spouses may ask for financial support from the other party. It is awarded to the spouse with less income disregarding any marital misconduct. The duration of payments is calculated by multiplying the number of years in marriage with the corresponding coefficient (Illinois Compiled Statutes, 750 ILCS 5/504 (b-1)).

But at first, a judge must establish the need for alimony by considering the following:

  • the income and property of each spouse;
  • the needs of each party,
  • the length of marriage;
  • standard of living enjoyed during the marriage;
  • health, employment prospects, vocational skills of the parties;
  • tax consequences;
  • the time necessary to acquire skills to seek employment;
  • contribution of the spouse asking for alimony to the education and career of another spouse;
  • other relevant factors.

A paying spouse can apply for a modification of the existing alimony order if their financial circumstances have changed and significantly affect their capacity to pay the support.

Property Division

Property Division

Divorce laws in Illinois on property division are the same for same-sex unions and heterosexual marriages. Illinois is an equitable property distribution state. What does it mean, and how is property divided exactly? Contrary to a common misconception, “equitable” means “fair,” not “half in half.” The judge will divide assets and liabilities after assessing all available information about the marital and separate property, including the following factors (Illinois Compiled Statutes, 750 ILCS 5/503 (d)):

  • contribution of each spouse to increase or decrease in value of marital and non-marital property;
  • the duration of the marriage;
  • dissipation of property;
  • health and age of the parties;
  • obligations from previous marriages;
  • prenuptial and postnuptial agreements;
  • tax consequences for each party;
  • other factors.

Marital property includes real estate, debts and obligations, pension benefits, and everything else acquired during the marriage. Separate property that each spouse had before the wedding or received as a personal gift or inheritance cannot be divided unless the spouses have a prenuptial agreement that states otherwise.

Mediation support

In cases involving minor children, a judge will order the parties to go through the process of mediation to assist them in compiling a parenting plan and agree on the visitation schedule. Mediation is an alternative way to resolve conflicts between spouses. It can consist of several sessions conducted by a third party (a mediator) specially trained to help facilitate peaceful and productive negotiations.

If the spouses cannot reach an amicable settlement agreement before the next court hearing, a judge will decide the issues of child custody and visitations at his or her discretion. Unfortunately, in contested cases with many complications, the involvement of an attorney and a divorce trial is almost unavoidable.

Filing fees for same-sex divorce in Illinois

A person can file for same-sex divorce in Illinois, providing that he or she pays the filing fee, the amount of which depends on local rules of each county. Submission of a Petition for marriage dissolution will cost approximately $200-$400. Couples with children will have to submit a Petition for Allocation of Parental Responsibilities, which requires an additional $300-$400.

A person can ask for a waiver of court fees if he or she cannot pay them in any divorce proceeding. Along with the application to be relieved of such payments, the court requires supporting documents with financial information that proves incapability to pay the fee.

How long it will take

The length of divorce process depends on the complexity of a given case, whether there are minor children and claims for their support or substantial property. An uncontested divorce for same-sex couples in Illinois usually takes about 90 days to be finalized, and 180 days if there are children. Contested cases are not as fast, lasting from several months to a few years.

Serving your spouse with the copies of the papers can take some time as well. A person married to a same-sex partner cannot get a divorce in Illinois if the spouse is out of state until she or he is adequately served. The decision of how to serve the documents is up to the petitioner. Either a sheriff or a private server can complete this task.

Frequently asked questions

Frequently asked questions
Do I have to pay alimony when I am unemployed?
If a paying spouse becomes unemployed, he or she may apply for a modification of the maintenance order. The payments will be reduced to the actual income, even if only it is from unemployment benefits. However, the unemployed spouse has to seek employment and lead a diary to report to the court.
Is parenting plan mandatory in Illinois?
In the event of filing a Petition for allocation of parental responsibilities, both parents must present a parenting plan, either jointly or separately, within 120 days. It has a standard form and includes personal data of parents and children and parenting responsibilities, as well as a schedule for each parent’s time with their child.
Do I have to pay child support if my wife and I have shared our child’s physical custody?
Both parents must pay child support no matter the type of custody. However, the amount of payments is calculated differently for shared physical custody. The portion of each parent’s support is multiplied by the percentage of time that a child spends with the other parent. Whoever has a greater obligation, pays the difference to the other party.
How much does a divorce cost in Illinois?
Uncontested divorces, especially without children, are usually not very expensive. Their cost can stay within limits of a few thousand dollars. Contested divorces on average require $12,000-$14,000. The lion’s share here is the payment to lawyers. For each hour of their work, you will have to pay $200-$300. Besides, court fees are higher when there are child custody issues.
Is the house bought before marriage a separate property?
Technically, any property bought before marriage is considered separate. But is both spouses improve the house or pay the mortgage, separate property can blend with marital. In the absence of a settlement agreement, a judge will decide which share belongs to which spouse.
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