Historic Gay Marriage Bill Likely to Pass Within the Month

 Posted on November 21, 2013 in Divorce

The Washington Post reported that, on November 5, the Illinois House of Representatives passed House Bill 5170 which, if signed by Governor Pat Quinn, will create the Illinois Religious Freedom and Marriage Fairness Act. Under this Act, all Illinois state laws that apply to marriage will apply equally to marriages between two people of the same sex as to marriages between two people of different sexes. According to the Post, an aide to Governor Quinn stated that he would sign the bill within the month.

Illinois Religious Freedom and Marriage Fairness Act

Before June 2011, same-sex couples were not entitled to the same marital rights as different-sex married couples. Under the law, married couples in Illinois received all protections that come to mind when imagining marriage: visitation rights in hospitals, survivor benefits in jointly-held property, and parental rights in children. Same-sex couples, on the other hand, were not merely prevented from obtaining these rights through marriage, they were expressly forbidden. The current Illinois Marriage and Dissolution of Marriage Act prohibits “a marriage between [two] individuals of the same sex.” The current Act even goes so far as to outright declare that “[a] marriage between [two] individuals of the same sex is contrary to the public policy of” Illinois.

Effective June 2011, the Illinois Religious Freedom Protection and Civil Union Act allowed all couples, including same-sex couples, to enter into “civil unions.” These unions have the legal effect of marriage for the purposes of all state law. This Act also recognizes same-sex marriages legally performed in other states as civil unions within Illinois. However, a civil union is not a “marriage” for the purposes of federal law.

DOMA and Its Aftermath

Under the Federal Defense of Marriage Act, or DOMA, same-sex couples could not receive the same benefits that different-sex married couples enjoyed, no matter whether the individual states had legalized same-sex marriage. These include tax benefits, Social Security, and pensions under ERISA.

However, DOMA was declared unconstitutional by the US Supreme Court in June of this year. Now, if a state recognizes gay marriages, same-sex married couples will receive the same benefits from both the Federal and state governments as different-sex married couples.

Illinois will become the 15th state of the Union to recognize same-sex marriage once Governor Quinn signs HB5170 into law.

What This Means

Same-sex marriages will now have the same legal status as different-sex marriages in every legal sense, under both Illinois and Federal law. This means, in the event of divorce, the division of property and the determination of spousal support will be the same. Pre-nuptial agreements will also be given effect under the same rules applied to so-called traditional marriages.

An interesting difference, however, will be parental issues. A parent automatically has rights to their biological children. However, in a same-sex marriage with children, a child can only be biologically related to one of the two parents at most. In order to secure parental rights, the non-biological parent would need to legally adopt the child.

An experienced family law attorney can help with any issues arising from marriage, be it same-sex or otherwise. If you have a legal issue regarding marriage, divorce, or any matter regarding family law in Illinois, contact the Davi Law Group