Does Illinois Recognize a Same-Sex Marriage from Another State?

Published on July 13, 2010 by Sandra Slaga

No.  As of this writing, Illinois law prohibits a marriage between two people of the same sex and does not recognize a same-sex marriage performed in a state where it is legal, for example, Massachusetts.

The Illinois Marriage and Dissolution of Marriage Act states that “a marriage between 2 individuals of the same sex” is prohibited.   750 ILCS 5/212(5).   The Act goes a step further in declaring that “A marriage between 2 individuals of the same sex is contrary to the public policy of this State.”  750 ILCS 5/213.1.   Finally, the Act provides that “if any person residing and intending to continue to reside in [Illinois] shall go to another state or country”, and obtains a prohibited marriage, that marriage will be declared “null and void for all purposes in [Illinois] with the same effect as though such prohibited marriage has been entered into in [Illinois].”  750 ILCS 5/216.

Other governmental entities in Illinois allow individuals to register as “domestic partners.”  While this doesn’t give the couple any legal rights, it does give them the opportunity to formally recognize their relationship and provides a basis for some employers to provide employment benefits to the partner of the employee.

How can same-sex couples protect each other and their families?  They have to be proactive.  They need to seek legal advice and create effective solutions that will legalize their relationship to the greatest extent possible. Some of the keys to such a plan are: financial powers of attorney, medical powers of attorney, partnership agreements, wills and trusts.

Categories: Common Questions, Illinois Gay Marriage, same sex marriage, same-sex partners Tags: , , Comments (0)

Collaborative Law in Illinois – Is It for You?

Published on June 9, 2010 by Sandra Slaga

Crain’s Chicago Business recently ran an article on Collaborative Law.  It’s worth a read.

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Civil Union in Vermont Makes Non-Biological Mom a Legal Parent in New York

Published on May 5, 2010 by Sandra Slaga

New York’s highest court ruled 7-0 yesterday (May 4) that a non-biological mother is a legal parent and entitled to seek custody and visitation.  The New York Court of Appeals based its decision on a Vermont civil union that the non-biological mother and her former partner entered into before the birth of their son.

The Court of Appeals stated, “New York will recognize parentage created by a civil union in Vermont.  Our determination that Debra H. is M.R.’s parent allows her to seek visitation and custody at a best-interest hearing.  There, she will have to establish facts demonstrating a relationship with M.R. that warrants an award in her favor.”  Debra H. v. Janice R., 2010 NY Slip Op 03755.

Debra H. may now go forward in the trial court to seek custody and visitation with her son, as well as to provide him with financial support.  A trial judge will ultimately rule on what is in the best interest of the child.

According to the case, Janice R. is the biological mother of M.R., a six-year old boy conceived through artificial insemination and born in December 2003.  Janice R. and Debra H. met in 2002 and entered into a civil union in Vermont in November 2003.  Janice R. repeatedly refused to let Debra H. become M.R.’s legal parent through adoption.  When they separated three years later, Janice R. allowed Debra H. to have supervised visits with M.R. as well as daily phone contact.  In the spring of 2008 Janice R. began reducing the visits.  By early May 2008, Janice R. completely severed communication between Debra H. and M.R.  Almost immediately Debra H. went to court seeking joint legal and physical custody of M.R.

The Court of Appeals decision addresses only the rights of couples who marry or enter civil unions.  It does not address the rights of parents in non-legal relationships.

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Gay Marriage But No Gay Divorce

Published on April 22, 2010 by Sandra Slaga

Two gay couples in Texas who were married in Massachusetts, where same-sex marriage is legal, are trying to get divorces, but the State of Texas is saying no.  Getting a divorce in Massachusetts is not an option since they are now Texas residents.

In the first case, the men – who are identified in court records as JB and HB – were married in Massachusetts in 2006 and separated two years later.  They had been together 11 years before ending their relationship.  In the second case, partners Angelique Naylor and Sabina Daly married in Massachusetts in 2004 and adopted a child.  Both couples are represented by attorney  James J. “Jody” Scheske.

Judge Tena Callahan granted a divorce to JB and HB last October and also ruled that Texas’ ban on gay marriage is unconstitutional.   Texas Attorney General Greg Abbot is fighting that ruling in the appellate court, arguing that in order to recognize the divorce, Texas would have to recognize the marriage, and therefore, the couple is trying to overturn Texas’ gay marriage ban.

Texas voters approved a state constitutional amendment, and state law prohibits same-sex marriages or civil unions.  Attorney General Abbot is arguing that Texas courts can’t dissolve a marriage that the state does not recognize.

As of this writing, Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and the District of Columbia allow same-sex marriage.    When trying to divorce, these couples are getting mixed results in the United States.  Judges in Pennsyvlvania, Indiana and Rhode Island have refused to divorce same-sex couples married elsewhere.  New York grants such divorces even though the state doesn’t allow same-sex marriage.

Civil unions, which give certain rights and responsibilities to same-sex couples, are legal in New Jersey.   Domestic partnerships, which give some spousal rights to same-sex couples, are valid  in California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Washington and Wisconsin.

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Advance Directives: Living Wills and Health Care Powers of Attorney

Published on March 31, 2010 by Sandra Slaga

Today’s five-year anniversary of Terri Schiavo’s death is a reminder that we all have to face end-of-life decisions, for ourselves and often for loved ones.   Most of us don’t like talking about end-of-life issues.  Even more of us never get around to putting a plan in writing.  Then-26-year-old Terri Schiavo didn’t either.

Terri was diagnosed as being in a persistent vegetative state after suffering cardiac arrest in 1990.  Her family battled in court for several years about her health care and, ultimately, whether she could be disconnected from life support.

According to an AP story, most Americans still avoid planning for the end of their lives.  This is ironic, since we are a people who plan everything:  our schedules, our careers, our vacations, our retirements.   When we don’t plan for end-of-life treatment and medical decisions, other people can take over at the very time when we are most vulnerable and in need of understanding.  A couple of simple yet critical legal documents – power of attorney for health care and living will -can communicate your wishes about the care and treatment you want to receive if you reach the point where you can no longer speak for yourself.
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2010 Census Data Will Count Same-Sex Partners and Same-Sex Spouses

Published on March 30, 2010 by Sandra Slaga

The 2010 Census will be the first census to publicly release the number of both same-sex spouses and same-sex unmarried partners.  In the past, these two groups were combined and reported as same-sex “unmarried partners.”

This information will come from the relationship question, which asks the person filling out the form to identify how all other individuals in the household are related to him or her.  Census 2010 will not include questions about sexual orientation or gender identity.  Data are based on how individuals self-identify and how couples think of themselves.  This includes same-sex couples who live in a state in which their relationship is not recognized.  Same-sex couples who are married, or consider themselves to be spouses, can identify one other adult as a “husband or wife.”  Other same-sex couples may instead decide to use the term “unmarried partner.”

For guidance on how to complete the form, LGBT persons can refer to the document Census 2010 LGBT Basics, created by Gary Gates of the Williams Institute at the UCLA School of Law.

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Pension Benefits for Same-Sex Couples

Published on February 17, 2010 by Sandra Slaga

Dennis Engelhard and Kelly Glossip were life partners for almost 15 years.   They owned a home together.  Glossip’s teenage son from a previous marriage, before Glossip came out as gay, considered Engelhard a stepfather.  But Glossip will not be receiving survivor’s benefits from Engelhard’s pension.

Engelhard, a 10-year veteran of the Missouri State Highway Patrol, was killed last December after getting out of his patrol car to place flares at the scene of a traffic accident.  Under Missouri state pension rules, if a trooper dies in the line of duty, his or her spouse is eligible for lifetime survivor benefits.   For Engelhard, that would have been more than $28,000 a year.

Missouri pension law is clear about who is a spouse.  In 2004 Missouri voters approved a constitutional amendment banning same-sex marriage.  Neither the state Highway Patrol pension system nor Missouri law recognizes domestic partners.

Although the unmarried partner of a heterosexual trooper would also not be eligible for survivor pension benefits, that couple would have had the option of getting married.   An option not available to Engelhard and Glossip.

Illinois, a bill, SB 2822, has recently been introduced that would amend the state pension code to allow a designated domestic partner to qualify as a surviving spouse for purposes of survivor and death benefits.  The bill defines a domestic partner as a person of the same gender as the unmarried pension participant who:

  • is at least 18 years old
  • is involved with the participant in a long-term relationship
  • has resided witht he participant at the same address for at least 12 months
  • is not a close blood relative of the participant
  • is not married to another person
  • has an exclusive mutual commitment to the participant in which they agree to be jointly responsible for each other’s common welfare and to share financial obligations.
Categories: Common Questions, Estate Planning, Illinois Law, same sex marriage Tags: , , Comments (0)

Same-Sex Couples and Adoption in Illinois

Published on February 16, 2010 by Sandra Slaga

Illinois is among several states that have laws which clearly allow unmarried persons, including same-sex couples, to adopt.  The Illinois Adoption Act states that “a reputable person of legal age and of either sex” may petition to adopt a child.   750 ILCS 50/2.  Illinois courts have held that this applies to unmarried same-sex couples or lesbian or gay individuals.  In Petition of K.M., 274 Ill.App.3d 189, 653 N.E.2d 888 (1st Dist. 1995);   In Petition of C.M.A., 306 Ill.App.3d 1061, 715 N.E.2d 674 (1st Dist. 1999).

Adoption for same-sex couples arises in one of two ways.   A “second-parent” adoption is a legal procedure in which a co-parent adopts her or his partner’s child without terminating the partner’s parental rights. In a “co-parent” adoption, an unmarried couple jointly petition the court to adopt a child.

An adopted child is the legal child of both adoptive parents.  Each parent has the same rights and responsibilities of any other parent.  This is true even if one of the adoptive parents is the biological parent of the child.  If the adoptive parents’ relationship breaks down after the adoption, neither of them has greater rights to the child than the other parent.  The child would have the right to have custody, visitation and child support issues heard by an Illinois court.

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Tool # 7 in the Life Planning Toolbox – Disposition of Remains

Published on February 8, 2010 by Sandra Slaga

The Illinois Disposition of Remains Act, 755 ILCS 65/1 et seq., provides one of the more recent tools in the Life Planning Toolbox.   The Act allows a person (the “principal”) to provide written instructions for the disposition, including cremation, of his or her remains.  It also allows a person to designate an agent to direct the disposition.   The document is known in Illinois as “Appointment of Agent to Control Disposition of Remains.”

If you have a health care power of attorney, you will likely not need Tool # 7 unless you want to designate someone other than your health care agent to have authority to dispose of your remains.  However, the Appointment of Agent to Control Disposition of Remains must be coordinated with the health care power of attorney to avoid confusion or conflict.

The Disposition of Remains Act provides that a person may provide written directions via the following:

  • a will;
  • a prepaid funeral or burial contract;
  • a power of attorney that meets the criteria of the Illinois Power of Attorney for Health Care;
  • a cremation authorization that complies with the Illinois Crematory Regulation Act; or
  • a written document that satisfies the provisions of Sections 10 and 15 of the Disposition of Remains Act and that is signed by the person and is notarized.  (that is, the “Appointment of Agent to Control Disposition of Remains.”)

The Act does not prioritize which of the above takes precedence, but the Appointment of Agent to Control Disposition of Remains does state that any prior appointment of a person to control disposition of remains is revoked.   755 ILCS 65/40(a).  It also provides that any disputes are to be resolved by a court.

As I’ve discussed many times -

  • discuss;
  • plan;  then -
  • take action

to ensure that what you want and what you intend for yourself and your loved ones come to pass.

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Tool # 6 in the Life Planning Toolbox – Real Estate Ownership Arrangements

Published on January 20, 2010 by Sandra Slaga
  • You own your home.
  • You are in a committed relationship with your partner.
  • You want to make sure that when you die, your home goes to your partner.
  • If so, you might consider owning the home as joint tenants, with right of survivorship.

Why own as joint tenants rather than just leaving the house to your partner in your will?  Even if you die with a will, your relatives (”legal heirs”) may go to court to challenge the will.  This has happened all too often to LGBT people.  Ownership in joint tenancy means that the surviving joint tenant immediately becomes the owner of the home when you die.  This is called a Right of Survivorship.

The main advantage of joint tenancy is the automatic transfer of ownership when one of the joint tenants dies.  A home in joint tenancy does not have to go through the probate estate of the person who died.

A word of caution:  property held in joint tenancy can be affected by several types of taxes, including federal and state income taxes, estate taxes and gift taxes.  Tax laws change often.  Carefully consider tax laws when deciding how to title your home or other property.

As always, consult an attorney or financial planner.

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