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Same Sex Marriage, Divorce and Division of Property

Same Sex Marriage, Divorce and Division of Property


Same-sex marriage has been one of the most polarizing issues in recent years, and its legality on a national level was not resolved until only last year. Before that, its legality was decided one state at a time. This means that many couples had to leave their own state to legally wed. While the first same-sex marriage licenses in the United States were issued in 1975, gay marriage did not become officially legal in any state until 1999. Policy on same-sex marriage varied widely between then and the Supreme Court case that made gay marriage a national right in 2015.  For example, in the year 2000 alone:

  • Vermont established civil unions in as a way to officially recognize same-sex marriage
  • Californians voted in Proposition 22 to recognize marriage as valid only between a man and woman
  • Nebraska amended its constitution to define marriage as between a man and a woman.

For same-sex partners in Illinois, they had to watch as other states gradually added more rights. Their own state did not legalize marriage for them until 2013, following the recognition of civil unions in 2011. By this time many had gone out of state to be married. But when they returned home, they still could not legally share real estate and other property as a couple.

When Same Sex Marriages Break Up

Just like traditional marriages, many same-sex marriages now end in divorce. But if the couple wed outside of Illinois prior to 2013, the marriage falls into a legal grey zone. When gay marriage became legal in Illinois in 2013, the issue of already wed couples was not addressed. So who gets the house when the marriage is over?

The answer to this complicated legal question is still not entirely clear. A Chicago real estate lawyer could advise that in most cases property that was purchased as a couple is not viewed as legally owned by both partners until June 1, 2011. This is the date that Illinois began recognizing civil unions. What this means is that if a couple went to Massachusetts in 2004 to wed, their legal life as a couple in Illinois did not begin for another seven years. Despite the federal legalization of gay marriage, the earlier struggles for marriage equality still impact couples in Illinois.

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